R v Luke Close

[2009] NSWDC 246

CITATION:	R v Luke CLOSE [2009] NSWDC 246
HEARING DATE(S):	27 August 2009
EX TEMPORE JUDGMENT DATE:	27 August 2009
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment. I set a non-parole period of four and a half years and a head sentence of seven years.
CATCHWORDS:	Criminal law - Sentence - Robbery with violence - In company - Grievous bodily harm
CASES CITED:	R v Fernando (1992) 76 A Crim R 58
PARTIES:	The Crown Luke Close
FILE NUMBER(S):	DC 09/11/0522
SOLICITORS:	NSW DPP Sydney Regional Aboriginal Corporation Legal Services

JUDGMENT

1 On 24 November last year, the victim in this matter, a man by the name of Armando Vieira went for a walk. It was about midnight. He was walking around his local neighbourhood. He was entitled to do so in safety. He was entitled to do so without being set upon by those who cared nothing for him or his rights. In the same vicinity were this offender and another man. They had one objective in mind and that was to rob Mr Vieira through the use of violence.

2 The circumstances of the offence as I am about to describe them, demonstrate significant callousness. A large part of the submissions put on behalf of the offender by Mr Jeffery related to the circumstances of this offender’s upbringing, but common humanity would suggest no matter what a person’s upbringing, it takes a particularly callous person to do what this offender did to Mr Vieira.

3 Mr Vieira first got into trouble when he saw this offender and the other man on the other side of the road. He was later pushed from behind; he fell forward and landed on his chest in a doorway. He tried to look around but was struck to his left eye. One of the two, men and it does not matter who, grabbed his neck and pushed his face into the ground. His jacket was pulled over his head so he could not see anything and whilst he was in that helpless position he was kicked a number of times. One of the men said;

“I want your wallet.”

and very sensibly the victim handed it over. It contained, of course, the various things that people carry in their wallets, credit cards, personal papers, some money, driver’s licence and a gold souvenir coin, all property which Mr Vieira was entitled to have, all property which the offenders wanted.

4 It was then that Mr Vieira was required to give his PIN number. He refused to tell the offenders. To this act of defiance the offenders responded by pulling him backwards and forwards and yelling;

“Give us the PIN number or I will kill you.”

5 Mr Vieira then gave them a number but it was, to his knowledge, the incorrect number. He was clearly hoping to minimise the consequences for him of this attack upon him. Unfortunately the offenders had other ideas. This offender, Mr Close, stayed with Mr Vieira whilst the unknown man left the vicinity intending to try and get some money out of the victim’s bank account. Fortunately all this had raised a bit of noise and a witness was woken from her sleep. She had been woken by him crying out in pain. What she saw when she looked out her window was Mr Vieira curled up in a foetal position on the ground being punched and kicked. Mr Vieira was helpless on the ground. Fortunately, what was taking place was observed by this witness who arranged for the police to be called.

6 The offender then made further demands on Mr Vieira. He firstly asked for his watch, which Mr Vieira gave him and then, and this is remarkable, demanded that Mr Vieira hand over his wedding ring. Mr Vieira did so.

7 I mentioned before the callousness of this offence. This action of the offender is but a further demonstration of the way he regarded Mr Vieira. He was also required to hand over his mobile phone, which he did. At this stage the unknown man returned with the news that Mr Vieira had given them the wrong PIN number. The offenders again pulled Mr Vieira’s jacket over his head so he could not see anything, picked him up off the ground and began dragging him before they pushed him in the back so that he fell forward and hit the ground face down again. Once more they threatened to kill him, saying,

“Give us the right number or I will kill you.”

8 By now Mr Vieira had clearly had enough, so he gave them the correct PIN number. This time it was the offender who left to obtain money from the ATM. The unknown man remained with Mr Vieira, kicking him and holding him down with his foot on Mr Vieira’s neck, so that he was held captive in effect for ten minutes.

9 Ms Johnson, the eyewitness who I have mentioned earlier, saw that every time Mr Vieira tried to get up, the unknown man would kick him. It was at this stage that police arrived preventing any further harm being caused to Mr Vieira, although, as I will shortly set out, he had already suffered significant harm indeed. Police were able to apprehend the offender after he seems to have got bored with hiding from them. They saw, amongst other things, that the offender had blood on his clothing. It was later revealed to have matched the blood of Mr Vieira.

10 Mr Vieira was taken to hospital, where he was treated. He remained in hospital for three days. His injuries were substantial. He suffered a fractured collarbone, a fractured cheekbone and he had significant bruising to his body. The consequences for Mr Vieira are long lasting. He did not work for a full six months because of the fracture to his collar bone and he is only working now on light duties, that only being possible because he works for a family member. When he is working he can only use one arm, is still having ongoing physiotherapy and requires a further operation on his collarbone in the future. He was in pain, not surprisingly, after the attack upon him, for a significant period of time.

11 He has thus suffered financially, physically and of course emotionally. He no longer goes out on his own any more. He clearly no longer goes for a walk around his neighbourhood by himself at night. Those consequences are substantial, they are entirely foreseeable and they are consequences for which the offender must bear criminal responsibility.

12 The offender was intoxicated at the time he committed this serious offence. He told police that it came about when he ran into some bloke outside the Marrickville RSL who asked him whether he wanted to make some money. It was clear that when the offender went with this unknown man, they had in mind the clear intention to rob someone through the use of violence. They intended precisely what came about, except that they did not intend that they would get caught.

13 The offender is still a young man but he has offences of violence on his criminal history, those offences also occurring in the context of excessive consumption of alcohol. The offender was brought up in Sydney. He is an Aboriginal. He has a number of siblings and half siblings. He told a psychologist that his childhood was difficult and it was characterised by his father’s alcohol abuse, his mother’s cannabis abuse and domestic violence perpetrated by his father against his mother.

14 His parents separated when he was about twelve and he went to live with his mother and his siblings in Coffs Harbour. He had infrequent contact with his father until he was about fifteen, when the family returned to Sydney and he began to see him regularly again. He then moved out of home when he was about sixteen and lived with his partner, with whom he has had two children. That relationship broke up and it appears to have had an affect of some consequence upon the offender. He began committing offences, which resulted in him going to gaol. He has worked from time to time but clearly inhibiting him from gaining employment is the fact that he did not complete high school but was expelled in year eleven for fighting.

15 Mr Jeffery appropriately relied on the principles to be found in the decision of R v Fernando (1992) 76 A Crim R 58. It is important to recognise that some people have an upbringing which makes it harder for them to resist the excessive consumption of alcohol. In a family as the offender experienced where domestic violence and alcohol abuse were regular events, the decisions that faced the child in those circumstances are not as easy as those faced by children brought up in households without those problems.

16 Mr Close senior, that is the offender’s father, gave evidence. He acknowledged that he abused alcohol but to his credit, has been sober for many years now. He clearly tried to take some of the blame for his son’s conduct upon himself but it has to be recognised that ultimately the decision to do what the offender did was his. The decision to rob the victim was the offender’s and the decision to beat him whilst he did so was the offender’s as well. Although of course I will make allowances for the circumstances of the offender’s upbringing, as I said before, common humanity would suggest that no matter what a person’s upbringing, it takes a particularly callous person to do what the offender did.

17 This offence carries with it a standard non-parole period of seven years. That is not of direct application because the offender pleaded guilty in the Local Court. Indeed, he told police on the night of his arrest that he would be doing so. Nevertheless, despite the plea of guilty, the standard non-parole period remains as a guidepost to the sentence I should impose in the present case. The offender’s plea of guilty is to be rewarded by a discount on the sentence I would otherwise have imposed of twenty-five per cent, reflecting the utilitarian value of his plea of guilty.

18 I am satisfied that as far as the objective gravity of the offence is concerned, it is significantly above the middle of the range of offences of this type. I say this, even acknowledging of course that grievous bodily harm and the offence being committed in company, are elements of the offence itself, but it is to be borne in mind that the offender was kicked whilst he was helpless, lying in a foetal position on the ground. He represented no threat to the offenders at all, the only reason they beat him was for money.

19 The offence occurred over a lengthy period of time. On two occasions the victim was held through the use of violence, whilst one of the men went to check whether the victim had supplied the right PIN number. Not only was there actual violence but also threats were made to the victim that he would be killed. It is no doubt a matter of some significant consequence to him that the offenders and in particular this offender, took his wedding ring. Finally, when assessing the objective seriousness, it is to be remember that the victim has significant ongoing consequences facing him, all flowing from his decision to go for a walk one night, something of course he should have been able to do without being attacked by those intent on the thuggish behaviour that I have outlined.

20 I mention that this event was committed whilst the offender was intoxicated but this is not a matter of mitigation. The offender was clearly aware of what was possibly going to happen when he got drunk, that finding being made in view of the relationship between his criminal history and alcohol as revealed in the evidence today. The question of his rehabilitation is therefore tied up with the question of whether he can overcome his alcohol problem, as his father has been able to. For that reason I will make a finding of special circumstances in the offender’s favour. If he can deal with his alcohol problem, that will help to deal with his criminal behaviour.

21 It is of most concern that the offender has displayed a continuing attitude of disobedience to the law, usually involving violence to strangers.

22 People like Mr Vieira need to be protected from people like the offender. There needs to be a substantial component of general deterrence as well as a substantial component of retribution in the sentence I will shortly announce upon the offender. My sentence needs to mark in a very concrete way, just how wrong the offender’s conduct was. It was, I regret to say, despicable.

23 The offender is sentenced to imprisonment. I set a non-parole period of four and a half years to date from 24 November 2008 and a head sentence of seven years. This means that the offender is eligible to be released to parole on 23 May 2013. It also means that I am not able to make an order for compulsory drug treatment.

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