R v Fernandez
[2003] VSC 471
•17 November 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1518 of 2002
| THE QUEEN |
| v |
| ROBERT FERNANDEZ |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF PLEA HEARING: | 5 SEPTEMBER 2003 | |
DATE OF SENTENCE: | 17 NOVEMBER 2003 | |
CASE MAY BE CITED AS: | R v FERNANDEZ | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 471 | |
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Sentence – Plea of guilty to common law kidnapping – Role of offender limited to initial forcible abduction – Serious offence requiring denunciation and general deterrence - Excellent prospects of rehabilitation – Imprisoned for 5 years with low non-parole period of 2½ years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | Kay Robertson, Solicitor for Public Prosecutions |
| For the Accused | Mr G. Connellan |
HIS HONOUR:
Robert Fernandez, you have pleaded guilty to the kidnapping of John Lin on 3 March 2001, at Glen Waverley. In sentencing you it is necessary to set out the facts of your involvement in this offence.
Some time after 1 a.m. on Saturday 3 March 2001, John Lin, a student at Melbourne University, drove to his home in Stanton Court, Glen Waverley. He parked his car in the street and was walking up his driveway when he sensed people behind him. He described one as being of Asian appearance and the other as a European who was a big guy with his hair tied up at the back. That person was you. You had come from a blue Commodore car driven by Alex Su which had clearly been sitting off Mr Lin's premises waiting for his arrival. In the series of events which followed, you and your accomplice (who remains unknown to the police), were acting as a team. You forced John Lin to the ground and restrained his movements. In the struggle his wallet and two CDs were dropped. It was Mr Lin's belief that one of you was wielding an electric spark gun because he heard what he thought were electric impulses and felt numbness around his back and the area of the right ribs. He did not, however, see any weapons. I have no doubt of the genuineness of Mr Lin's belief, but I cannot be satisfied beyond reasonable doubt of the presence of such a weapon.
At some stage John Lin asked you and your associate what you wanted. He also yelled at you to "fuck off" - words heard by your sister Julia who was inside the house and by a neighbour, David Maple. He was told to shut up and efforts were made to cover his eyes and mouth. It was put by your counsel that in the depositional material you were described as telling John Lin to be quiet, to do what they said and he would not get hurt. This would not seem to me to be a mitigatory feature of your conduct. The best that can said is that you perpetrated no gratuitous violence upon Mr Lin.
Next, in the sequence of events, Mr Lin was then dragged to his feet and carried down the driveway to the waiting vehicle. He was screaming out his sister's name and he attempted to resist your efforts by placing his arm on the top of the vehicle. This was to no avail and he was soon forced on to the back seat. Nonetheless Mr Lin then tried to escape through the offside passenger door which he managed to open. Either you or your accomplice climbed over the top of him and endeavoured to close the door. By this time Alex Su was reversing the vehicle and the open door struck a tree on the naturestrip. Mr Maple's car, which was parked on the opposite side of the roadway, was also struck. The vehicle left Stanton Court and Mr Lin was pushed down on to the back seat and told to be quiet. His hands were held behind his back. During the ensuing period phone calls were exchanged between the Lin house telephone and John Lin's mobile phone. Not surprisingly, there was some confusion about the sequence of these calls and the language used. However, John Lin's brother, Vincent Lin, gave evidence of receiving two calls which were in English. On each occasion the caller (who he identified as Alex Su), told him not to worry and that he would bring his brother back in 20 minutes. However, according to Vincent Lin, on the second occasion this message was accompanied by a warning not to contact the police or he would not see his brother again. In brief conversations which accompanied these calls John Lin said he was fine. He gave evidence at the trial of Alex Su to the effect that he was told to say he was okay and did so.
It is common ground that there was a later call in Mandarin Chinese in which the caller (again identified by Vincent Lin as Alex Su), asked if Rachel Su was John Lin's mother and whether he could speak to her. He was told that she was overseas and would not be arriving until 11 a.m. the next morning to which he responded that he would ring her at 3 p.m. that afternoon. It was not suggested that you could speak or understand Mandarin so as to be aware of the proposed course of events.
After the phone calls John Lin was pushed down into the space between the back seat and the back of the front seat. A plastic cable tie was put around his hands at the back, and he also believed that his feet were tied up. A cloth hood was placed over his head.
The vehicle containing Mr Lin was driven first on to a gravel road and later into a suburban area before entering a household garage. In the course of the journey to this destination the car stopped and you left it, apparently getting into another vehicle. It was not suggested by the Crown that you played any further role in the kidnapping. It was, however, submitted that you were involved in the pre-planning of the kidnapping and that such an inference could be drawn from telephone calls between 23 February and 2 March 2001, to Alex Su and also to a co-accused at that time, Shaun Goerlitz, who was involved at a later stage with these events as a driver for Alex Su. These calls were made during the evening, and some appear to have been transmitted from mobile towers in the general vicinity of the Lin household. Consequently it was argued, (as I understand it), that you could have been keeping John Lin under observation. Against this contention is the fact that you knew both Su and Goerlitz through your association with the building industry and the significance of the location of the towers depends very much on the operational capacity of those towers and the state of congestion of the telephone system at the relevant time. Although clearly suspicious, I am not satisfied beyond reasonable doubt that the inference for which the Crown contends can be drawn in all the circumstances. I am, however, satisfied that you were aware, at least by the evening of 2 March, of the intention of Alex Su to abduct Mr Lin. It follows that there was an element of premeditation in your actions.
Furthermore, you were an integral part of the kidnapping, providing the physical strength necessary to forcibly take Mr Lin from his premises; and you used whatever force was required to achieve this result.
I am prepared to accept that you were influenced by Alex Su who was several years your senior. Moreover, he operated a business called Suma Project Management and provided work for your fledgling drafting business. He also employed you from time to time in a supervisory role on building sites. It was that relationship that led to your involvement in this offence.
As to your awareness of the precise purpose of the abduction, I am not satisfied that you were aware that it was a prelude to a ransom demand for $1.5 million. However, on the material it would be quite unrealistic to conclude that you were unaware that the motivation or purpose of the kidnapping lay in some form of financial consideration, (such as the recovery of an alleged debt).
It is accepted that your specific role lasted only about 30 minutes and there was no suggestion that you contemplated the lengthy detention of Mr Lin that ultimately occurred. However, the proposition that you anticipated John Lin would be returned to his family after 20 minutes with a message to them that a debt had to be addressed, is quite untenable. At the time you left the vehicle that period had already elapsed, Mr Lin was bound and hooded, and there was no indication whatsoever of the vehicle returning to Glen Waverley. There was no evidence presented in this court on your behalf to rebut what I regard as a compelling inference from the facts that I have outlined. Further, although your participation in the kidnapping was of limited duration, your actions in forcibly subduing John Lin and holding him captive in the car were extremely traumatic for him. The extent of the psychological trauma is eloquently set out in the victim-impact statement of John Lin. The statement must, of course, be read having regard to your limited role in his detention. Nonetheless, it is clear that the initial act of kidnapping has made a contribution to the disruption of his daily life. Such activities as walking the dog and going out of his house at night have become stressful occasions; and when driving his car Mr Lin consciously watches for vehicles which might be following him for any distance. I accept, however, that much of the adverse impact of the kidnapping is attributable to the events involved in Mr Lin's detention over the succeeding two weeks as well as the threats initiated by Alex Su in March 2002.
The Crown accepted your plea to common law kidnapping, as distinct from the offence of kidnapping created by s.63A of the Crimes Act 1958. The latter involves, (inter alia), the additional element of taking a person away with the specific intent of demanding a ransom. Although both offences carry the same maximum penalty, I take the view that, as a general proposition, the statutory offence of kidnapping with the specific intent to which I have referred, is the more serious. Consequently, I take into account in your favour the absence of that element in the offence to which you have pleaded guilty. However, in whatever terms the offence of kidnapping is couched, it has always been regarded as a serious offence by our community. Whilst the offence is relatively rare, it is important that the courts, by the sentences they impose, denounce its commission and seek to deter any persons who might be minded to undertake such criminal activity.
There are a number of matters personal to you which are pertinent to the sentence to be imposed.
You are currently aged 27 having been born in Asturias, Spain, in July 1976. You are the middle child of three brothers. You came to Australia with your parents at the age of three months. In Australia your father established his own building construction business which he still operates in conjunction with your mother and elder brother.
In 1991, you initially finished your secondary education at Year 10 level at Endeavour Hills Secondary College. You were then aged 15. I am told that when you were 16 a significant conflict arose between you and your parents as to your future and this resulted in your leaving home. However, by the age of 18 you had returned home and your parents remain very supportive of you. One result of this reconciliation was your return to school when you were aged 19 to do your VCE. You completed it in 1996. In 1998, you commenced a TAFE course at Chisholm Institute for a Diploma of Building, Design and Drafting, which you finished the following year. A reference tendered to the court from a senior lecturer at Chisholm Institute refers to you as a conscientious and hard working student.
On the employment front, having originally spent some time in you father's construction business, you worked at Mondami Constructions in 1994, before returning to work with your father.
In 2000, you worked with an organisation called The Professional Group as a draftsman and later a project manager. This was prior to setting up your own business, Design PRO which designs homes and extensions, in 2001. References from several professional organisations attested to your skills as a draftsman.
During your VCE and TAFE courses you worked in nightclubs as a crowd controller. Your physical development can be traced back to 1993, when you commenced power lifting under the encouragement of Joseph Zollo, a youth worker at Endeavour Hills Youth Resource Centre. Mr Zollo gave evidence on your behalf and spoke favourably of your work as a volunteer at the Centre running a gym program. He described your work as inspirational, your attitude to others as respectful, and this offence as totally out of character. Mr Zollo also told the court of a period of depression and lack of focus in your life in 2000 and 2001 after the break-up of a relationship that you had established with a young woman. Another witness on your plea, Mr Bill Alievski, the victim of a car accident, who knew you for eight months prior to your incarceration deposed to the encouragement and assistance you gave him when he was undertaking exercise at Mike's Gym, Dandenong.
Mr Zollo had visited you in prison and gave evidence of your remorse at what you had done and he further indicated a willingness to take you on in future to work with young people.
You have been very successful in competitions involving the use of physical strength. You came second in the 2000 Australia Day National Strongman Competition and, in 2001, you apparently came second in a power lifting event. You hope to pursue power lifting on your release from prison.
Linked with your sporting activities has been an interest in diet. While in prison you have developed a computer software program, one focus of which is the analysis and linking of dietary requirements to athletic activities.
Apart from this program, you have undertaken TAFE courses in information technology and you have set up websites relating to be your own business, Design PRO. Additionally, you have obtained TAFE certificates in areas such as General for Adults (Numeracy and Mathematics). Your efforts to rehabilitate yourself while in custody are to your credit.
Effectively you have no prior convictions, although you await the resolution of charges relating to burglary in 1999 and the use, possession and trafficking of steroids in October 2001. I am instructed that you have abandoned any use of steroids in your future, and testing during your incarceration indicates that you are now drug-free.
You clearly quite intelligent and your employment history, previous service to youth, dedication to sport, lack of prior convictions, as well as your efforts to better yourself while in prison, (including the developing of systems for future business activity), all indicate that your prospects of rehabilitation are excellent. In this regard I also take into account your relative youth and the fact that you have the ongoing support of your family.
Further, I accept that you are remorseful.
Additionally, you are entitled to credit for your plea of guilty which, in the circumstances of negotiations with the Crown, I am prepared to regard as having been made at the earliest possible opportunity. All these factors are in your favour, but must be balanced against the gravity of the offence of kidnapping and the need for the denunciation and deterrence of it. Ultimately, I have concluded that the appropriate sentence in your case is that you be imprisoned for five years. Allowing for your prospects of rehabilitation, I fix a lower than normal minimum of two and a half years before you are eligible for parole. Further, it is declared that the period of 632 days, inclusive of today's date, can be reckoned as the period of detention already served under the sentence. I direct that there be noted in the records of the Court the fact that such declaration is made and its details.
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