R v Close (No 2) - [2020] NSWSC 1565

No judgment structure available for this case.

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Close (No 2) [2020] NSWSC 1565
Hearing dates: 23 October 2020
Decision date: 06 November 2020
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Convicted of the offences of reckless damage and common assault.
(2) Convicted of the offence of murder.
(3) For the reckless damage, I impose a fixed term of three months, to commence on 24 February 2019 and expire on 23 May 2019.
(4) For the common assault, I impose a fixed term of six months, to commence on 24 February 2019 and expire on 23 August 2019.
(5) For the offence of murder, I impose a non-parole period of 14 years, to commence on 24 February 2019. That will be followed by a parole period of 7 years, to conclude on 23 February 2040.
(6) To express the murder sentence another way, I have imposed a head sentence of imprisonment for 21 years, with a non-parole period of 14 years, partly concurrent with the pre-existing aggregate sentence.
(7) The first date upon which it appears that the offender may be eligible for release to parole is 23 February 2033.

Catchwords:
CRIMINAL LAW – sentence – conviction of murder after judge-alone trial – guilty plea to manslaughter on arraignment – deceased stabbed several times in frenzy – self-induced intoxication – intention to kill – spontaneous – offender entirely amnesic of the offence – criminal history featuring serious violence – deprived upbringing – addiction and substance abuse – special circumstances established

Category: Sentence
Parties: Regina (Crown)
Luke Jordan Close (Offender)
Representation:
Counsel:
K Ratcliffe (Crown)
T Anderson (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Aboriginal Legal Service (Offender)

File Number(s): 2018/62445; 2018/63079

REMARKS ON SENTENCE

Introduction

On 6 August 2020, at the conclusion of a trial by judge alone conducted in Nowra, I returned a verdict of guilty of murder against Luke Jordan Close (the offender). That verdict was on an indictment that alleged that the offender had murdered Garry James Welsh (the deceased) on or about 23 February 2018 in the same regional centre. The proceedings on sentence were conducted on 23 October 2020 in Sydney, and it falls to me to sentence the offender today.
Because the offender had entered a plea of “not guilty to murder but guilty of manslaughter” at the commencement of the judge alone trial, my reasons for verdict focus upon the question of proof beyond reasonable doubt of one or other of the necessary mental elements for murder. Even so, they also provide a detailed discussion of the events surrounding the death of the deceased. For that reason, these remarks will be shorter than otherwise. And in the interests of public justice, a link to my earlier reasons for verdict will be provided at the conclusion of the online version of this sentencing judgment.

Objective features

To recap briefly: some days before the date in question, the offender, an Aboriginal man living in the Shoalhaven and then aged 31, had been bailed on previous charges to live at the home of his sister in Old Guildford, in the western suburbs of Sydney. For the short time that he lived there, things seemed to be proceeding quietly and well. Thereafter, his then romantic partner, who had been sharing a home with him in Bomaderry, just north of Nowra, decided to visit him with their children. Tension developed between the two of them. Eventually, the offender made the rash decision to return by train to the Shoalhaven with his partner and children, thereby breaching his bail. That also meant, I believe, that he placed himself again in a milieu of deprivation and abuse of prohibited drugs and alcohol that was, as events promptly proved, extremely dangerous.
The next day, the offender returned to his damaged and damaging lifestyle in that regional centre. It featured abuse, over many hours, of alcohol in the company of a chronic alcoholic, at some stage the use of a stimulant – probably crystal methylamphetamine, also known as ice – and, later in the evening, an opioid of some kind.
He also endured petty annoyances and slights throughout that day and evening. They included finding that someone had interfered with his bags of belongings, which he had left at the home of a friend for safe keeping whilst away from town; discovering that a BMX bike of sentimental value to him had been taken without permission; and, later in the evening, running into a person whom the offender believed had insulted him on social media. He also suspected that his romantic partner may have been unfaithful to him in his absence. Finally, he must have been aware that he was at risk of immediate return to custody, because he was in clear breach of his bail.
That combination of substances, events, and states of mind caused the offender to be agitated and very easily angered. Indeed, earlier in the day he had spoken to a female friend of being in “the horrors”, and being liable to kill somebody.
Separately, the deceased lived in a modest apartment in the southern part of Nowra. An older gentleman, he had been a smoker for years, and had also endured his own negative relationship with prohibited drugs. The result was that he was extremely frail, suffered from serious breathing problems, and could only walk short distances. The deceased had a number of friends who helped him get through the rigours of daily life in his impaired state of health.
The offender and the deceased were known to each other. Apart from anything else, the deceased was in the habit of supplying small quantities of prohibited drugs, though in no sense was he a wealthy drug dealer who gained enormous profits from the misery of others. The offender thought of the deceased as a friend, and had indeed stayed with him for a time in the past. Having said that, I think that the offender, like many other deprived people in Nowra, took advantage of the generosity of the deceased as well.
In the very early hours of 23 February 2018, the offender travelled on foot to the home of the deceased. An earlier conversation between the offender and his romantic partner, a text message sent by the latter to the deceased, and a bedside drawer, found later in the home of the deceased to have been removed from its bedside table and with its contents scattered across the floor, establish, in combination, to my mind the following.
The offender attended the home of the deceased seeking to obtain prohibited drugs. None, or none satisfactory, were available. In great agitation, the offender searched for them unsuccessfully by flinging the drawer onto the floor. He was overwhelmed with frustration and resentment. In a mounting frenzy, he stabbed the deceased to death in his own home. At least 50 wounds were inflicted. The tragic death of that defenceless old man was prompt, but by no means instantaneous. It was terrifying and excruciatingly painful. Although the offender was indeed grossly intoxicated and in a frenzy that went beyond rationality, he surely at some stage of the attack appreciated that he was bringing about the death of his victim.
Very soon afterwards, the offender was seen walking through the streets of Nowra. He was in a distressed and enraged state, and damaged the side mirror of at least one parked car, which has led to a charge of damaging property being placed before me on a certificate. He walked down to a nearby park, and spoke briefly to a friend who was himself up in the early hours waiting to obtain a government payment so that he could immediately obtain prohibited drugs. The offender returned on foot to the scene of the crime, and engaged in a short physical fight with a concerned bystander. That interaction led to a further charge on a certificate of common assault. When told that the police were on their way, the offender expressed a desire to be run over by their vehicle.
The offender was arrested close to the home of the deceased. He was taken to Nowra Police Station, where it was feared that he was suffering an opioid overdose. Paramedics administered a reversing agent, with the result that he then became frighteningly agitated and aggressive. He had to be treated by paramedics again, this time with a sedative that ultimately led to his unconsciousness.
The following day, the offender had no memory of what he had done. Indeed, when speaking to police, he openly admitted that, if he had been seen walking the streets near the home of the deceased shortly before the fatal attack, that would have been his destination.

Objective seriousness

Murder carries a maximum penalty of imprisonment for life without parole, and in these circumstances a standard non-parole period of 20 years. Damage to property, when dealt with summarily as here, has a jurisdictional limit of imprisonment for two years. The jurisdictional limit of common assault in the same circumstances is also two years. All of those matters are important guideposts to my exercise of sentencing discretion.
In the circumstances, I proceed to analyse only the objective seriousness of this example of the offence of murder.
The thumbnail sketch of the facts that I provided a moment ago, filled in in much more detail in my reasons for verdict, demonstrates the following objective aspects of this example of the offence.
The deceased was a sick, weak, and defenceless old man.
He was stabbed to death in his own home, by a person whom the deceased trusted and who had not forced entry.
A weapon was used, and used repeatedly.
Although formed in the context of gross intoxication and agitation that had become a frenzy, there was certainly an intention to kill.
It is true that the offence was unplanned, spontaneous, irrational, and motivated by nothing more sophisticated than the frustration of a drug dependent person about the unavailability of the substances that were ruining his own life.
Even so, this must be assessed as a very serious example of the gravest offence known to law.

Subjective features

I turn from a discussion of the offence of murder to a discussion of the life of the man who has committed it.
As I have said, the offender was aged 31 when he committed this murder, and is now aged 34. I accept the following on the balance of probabilities, based as it is on things that the offender has told more than one psychologist over a number of years, and an affidavit from his sister.

Background

The upbringing of the offender was certainly disadvantaged: his father was a strict disciplinarian, and their relationship was difficult; he was exposed to domestic violence as a child; the family relocated frequently, he attended many schools as a result, and his education was badly disrupted; his parents split up when the offender was 12, with attendant financial and emotional hardship; and the offender fathered his first child at the age of 15, at a time when he was completely incapable of fulfilling the role of a parent. Poignantly, the offender attempted to continue his education after the birth, and he was literally attending high school with a baby under his care.
Perhaps most importantly and regrettably, when the offender was 14 or 15, his mother introduced him to cannabis. Ever since then, problems with drugs and alcohol have blighted his life, and have been one of the most significant causes of all that has gone wrong, including, as I have explained, this fatal tragedy.
I believe that, as a result of his deprived, disrupted, and unsatisfactory upbringing, the offender has developed depression and problems containing his own anger. And because of his abuse of alcohol and prohibited drugs, he has also experienced paranoia, anxiety, and panic like symptoms. No doubt as a result of intravenous drug use, he has been also been diagnosed with hepatitis C.
In short, the unsatisfactory features of the childhood and adolescence of the offender are important underlying causative factors in this offence, and the law requires that they be reflected in the sentence that I shall impose.

Criminal record

As one might expect from his start in life, the offender has not been free of interactions with the criminal justice system. They began in early 2004, when the offender was charged with an offence of violence, assault occasioning actual bodily harm. A couple of months later, he committed a further assault. Both of those offences were dealt with in the Children’s Court without any order for detention. The next year he breached an apprehended domestic violence order, and was fined. In 2005, he was imprisoned by way of a total head sentence of 12 months with a non-parole period of 9 months for offences of actual and threatened violence and damage to property.
In November 2008, the offender committed a very serious offence of robbery in company causing grievous bodily harm. It is noteworthy that that offence was committed spontaneously after a heavy drinking session. Less than a year later, he received a head sentence of imprisonment for seven years with a non-parole period of four years and six months. He was eventually released in May 2013, though he was breached on parole and returned to custody more than once.
I have already referred to the fact that Mr Close was on bail on the day of the murder, and indeed in breach of his bail. That related to offences of violence that he had committed against his romantic partner in late 2017. The result of those was an aggregate head sentence of imprisonment for three years six months with an aggregate non-parole period of two years, to commence on 24 February 2018 (the date upon which the offender came into prison having been charged with the murder). The aggregate non-parole period expired on 23 February 2020, and the aggregate head sentence will expire on 23 August 2021.
In other words, regrettably, the offender has been committing crimes of violence for many years, both as boy and man. Some of those have been less serious, I accept. But the recent offences against his partner were serious, and the robbery in company causing grievous bodily harm was patently very serious indeed. All of that must be reflected in the sentence to be imposed upon the offender, not in order to punish him twice, but simply to give appropriate weight to personal and general deterrence, his disentitlement to leniency, the inevitably guarded prospects of rehabilitation, and denunciation for this latest collision with the criminal law of the gravest kind.

Positive aspects

To be weighed against those negative factors are the following.
The offender pleaded guilty to manslaughter at the start of the trial, despite his amnesia for what he had done. That was a significant acceptance of responsibility that would, I believe, have been a difficult step in the absence of memory, even despite the strength of the Crown case that he was the perpetrator. It also meant that the trial was tightly focused.
In the past, the offender has shown his commitment to getting help by attending a full-time drug and alcohol rehabilitation centre for four months, which I accept is also a difficult and personally challenging step. For a time, he was abstinent, though after a couple of months in the community he relapsed, breached parole, and returned to custody.
Finally, as I have said, for a short time he complied with bail, and seemed to be going well away from bad influences in the Shoalhaven, with the love and support of his sister and her family. It is thought-provoking to reflect on whether this terrible event may never have happened if the offender had not made the impulsive decision to breach his bail.

Remorse?

As for the attitude of the offender to what he has done, as I have said there has at the least been a public, solemn, and difficult acceptance of responsibility for homicide. And indeed my verdict of guilty of murder did not depend upon rejection of anything the offender had to say; rather, it was based upon analysis of events of which he recalled nothing.
There was a brief reference to regret about the death of the deceased in one of the psychological reports. I also received a short letter from the offender, upon which the Crown prosecutor did not insist that he be cross-examined. I generally approach such letters with caution, and do so again here. Even so, I think the point is well made by defence counsel that for a man like the offender, who is not well-educated and who has lived a tough and difficult life – quite some years of it in prisons – flowery or ornate expressions of feeling are not to be expected.
The final relevant factor with regard to this question is that the trial was conducted in difficult circumstances, and was disrupted more than once by the public health emergency then pertaining. Even so, the offender conducted himself in the courtroom with composure and restraint.
On balance, I think that the offender regrets his decision to return to Nowra, his decision to ingest alcohol and prohibited drugs that day, and the resultant brutal death of the deceased. And I believe that that regret goes beyond the inevitable consequences for himself, and for those who love and support him.

The future?

As for the future, despite the pattern of violence that has existed in the life of the offender for 16 years, I do not presume to make pessimistic, adverse findings about how things will be many years from now. Patently, there are fundamental distortions in the life of this man that need to be addressed: freeing himself from dependence upon and abuse of alcohol and prohibited drugs, addressing his issues with anger and violence, escaping from a cycle of reoffending and reincarceration. To be weighed against those challenges are the efforts this man has made in the past; the love and support of family members evidenced by their presence during the proceedings on sentence; and the acceptance of responsibility and regret that I have found exist. If the offender can get help in custody and on parole, if the abuse of substances can be addressed, and if a return to a chaotic, unstructured lifestyle can be avoided, I possess an extremely guarded optimism – nothing more than that – that Mr Close may be able to succeed in rebuilding his life upon his release, many years from now.

Various matters

Dealing now with some discrete matters, these remarks capture all of the objective and subjective features upon which my sentence is based, and I shall not list them again in a mechanistic way.
Secondly, the parties were agreed that there should be some measure of concurrence and cumulation between the sentences that I shall impose and the pre-existing aggregate sentence that I have mentioned. I agree with that. I have decided that my sentences should commence one year after the commencement of the pre-existing sentence, thereby affording the offender 12 months of concurrence with the pre-existing non-parole period.
Thirdly, I was helpfully provided with references to a number of judgments, both at first instance and on appeal, pertaining to sentences for murder after a trial. I have reflected on those, but because each case must turn on its own facts, I shall not pause now to discuss their details.
Fourthly, the offender should be aware that it is possible that he will be detained in custody, not only after the expiry of his non-parole period, but even after the expiry of his entire head sentence, if it is established at that stage that he constitutes a danger to the community.
Fifthly, despite the inevitable length of the parole period, this is the rare murder sentence in which I am satisfied that there should be a slight reduction in the ratio between the non-parole period and the head sentence. I say that because it will be an enormous task for the offender to succeed, and I think that there is scope to extend the period of rehabilitative help in the community, albeit to a small degree. To be clear: in my opinion, any non-parole period shorter than that which I shall impose shortly would not adequately reflect the objective gravity of this offence, combined with the subjective context of the criminal record of the offender.

Victim impact statements

So far I have spoken at length about the offence of murder and the man whom I shall sentence for it shortly, as the law requires me to do. But I have not forgotten the man whose life was violently and completely undeservedly brought to an end, the event that has underpinned these proceedings over many days in two different courtrooms. I have received three victim impact statements about the effects of his death, and I certainly take them into account as aspects of the harm to the community that has been done in this case.
As I have said, at the time of his death the deceased was a sick, frail, older man, leading a very difficult and circumscribed life.
His mother Ms Pat Welsh has spoken of the effect that the violent loss of her son’s life has had on her; so great was it that in the early stages of her grief she needed to be hospitalised. She has found it very hard to erase from her mind the final minutes of pain and fear in the life of her son. She has spoken of the struggle of the whole family to move on from this tragedy.
His sister Ms Kim Gough has spoken of happy memories of her big brother, and how much he was missed when he was away working and travelling as a young man. She has also spoken of the trauma of hearing, throughout the trial, of the details of the injuries to her brother. She fears that his death was nothing more than the culmination of him being taken advantage of by others.
Finally, Ms Christine Laird speaks of coming to learn that her brother had been killed whilst she was far away from her home. She has described the trip to Nowra as the longest drive of her life. She has also spoken of all that has happened as a bad dream from which she cannot wake. She remembers her eldest brother not as the frail old man, but as the handsome young man, protective of his younger siblings. She recalls his closeness in later years to his nieces and nephews. She speaks of the fact that, despite all of the sadness, the deceased will forever remain on the pedestal on which she placed him all of those years ago.
The poignancy of those statements, and the depth of feeling and ongoing suffering that they demonstrate, requires no emphasis by me. I extend my condolences to all those who have loved and lost son, brother, uncle, and friend, Mr Garry Welsh. And I express the hope that the conclusion of these gruelling and extended legal proceedings today may provide some measure of relief to all of those who are in mourning.

Imposition of sentence

Luke Jordan Close, you are convicted of the offences of reckless damage and common assault.
Luke Jordan Close, you are convicted of the offence of murder.
For the reckless damage, I impose a fixed term of three months, to commence on 24 February 2019 and expire on 23 May 2019.
For the common assault, I impose a fixed term of six months, to commence on 24 February 2019 and expire on 23 August 2019.
For the offence of murder, I impose a non-parole period of 14 years, to commence on 24 February 2019. That will be followed by a parole period of 7 years, to conclude on 23 February 2040.
To express the murder sentence another way, I have imposed a head sentence of imprisonment for 21 years, with a non-parole period of 14 years, partly concurrent with the pre-existing aggregate sentence.
The first date upon which it appears that the offender may be eligible for release to parole is 23 February 2033.

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Reasons for Verdict:

Amendments

06 November 2020 - Link to Reasons for Verdict corrected

Decision last updated: 06 November 2020

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R v Close (No 2) [2020] NSWSC 1565

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Medium Neutral Citation:	R v Close (No 2) [2020] NSWSC 1565
Hearing dates:	23 October 2020
Decision date:	06 November 2020
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) Convicted of the offences of reckless damage and common assault. (2) Convicted of the offence of murder. (3) For the reckless damage, I impose a fixed term of three months, to commence on 24 February 2019 and expire on 23 May 2019. (4) For the common assault, I impose a fixed term of six months, to commence on 24 February 2019 and expire on 23 August 2019. (5) For the offence of murder, I impose a non-parole period of 14 years, to commence on 24 February 2019. That will be followed by a parole period of 7 years, to conclude on 23 February 2040. (6) To express the murder sentence another way, I have imposed a head sentence of imprisonment for 21 years, with a non-parole period of 14 years, partly concurrent with the pre-existing aggregate sentence. (7) The first date upon which it appears that the offender may be eligible for release to parole is 23 February 2033.
Catchwords:	CRIMINAL LAW – sentence – conviction of murder after judge-alone trial – guilty plea to manslaughter on arraignment – deceased stabbed several times in frenzy – self-induced intoxication – intention to kill – spontaneous – offender entirely amnesic of the offence – criminal history featuring serious violence – deprived upbringing – addiction and substance abuse – special circumstances established
Category:	Sentence
Parties:	Regina (Crown) Luke Jordan Close (Offender)
Representation:	Counsel: K Ratcliffe (Crown) T Anderson (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender)
File Number(s):	2018/62445; 2018/63079