R v Cruise - [2022] NSWDC 498

District Court

New South Wales

Medium Neutral Citation: R v Cruise [2022] NSWDC 498
Hearing dates: 14/2/22-21/2/22, 23/2/22, 25/3/22, 8/4/22, 20/5/22, 14/6/22, 16/6/22
Date of orders: 16/6/22
Decision date: 16 June 2022
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Convicted and sentenced to an aggregate sentence of four years with a NPP of two years nine months (21/4/22-20/1/25). Indicatives:
Count 1 - seven months imprisonment.
Count 2 - three years nine months imprisonment

Catchwords:
Crime – Sentence – Assault occasioning actual bodily harm – Inflict actual bodily harm with intent to have sexual intercourse – Offences occurred in a custodial setting.

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Behman v R [2014] NSWCCA 239
Bugmy v R [2013] HCA 37
Nasrallah v R [2021] NSWCCA 207

Category: Sentence
Parties: NSW DPP – Crown
Peter James Cruise - Offender
Representation: Mr C Young for Crown
Mr P Kondich for Offender

File Number(s): 2020/104640
Publication restriction: Statutory non-publication of the identity of the complainant.

sentence

The offender Peter Cruise is for sentence in relation to two offences. Count 1 on the indictment is an offence under s 56(1) of the Crimes Act 1900, that on 14 January 2019 he assaulted CS, occasioning actual bodily harm to CS. The maximum penalty for that offence is five years imprisonment. The offender pleaded guilty to that offence on the day his trial was due to commence. Accordingly, he is entitled to a discount of 5% on account of the utilitarian value of that plea.
Count 2 on the indictment is an offence under s 61K(a) of the Crimes Act 1900 that on 23 January 2019, he intentionally inflicted actual bodily harm on CS with intent to have sexual intercourse with him. The maximum penalty for that offence is 20 years imprisonment. The offender pleaded not guilty to that offence, however, after a judge alone trial before myself at the Newcastle Local Court which commenced on 14 February 2022, I found him guilty of that offence. The maximum penalties to which I have referred are important guideposts in the sentencing exercise to which I have had regard.
The trial of the offender and a then co-accused Michael Zeiser on count 2 and an alternative count 3, took place at the District Court at Newcastle over about three days from 14 to 17 February 2022. While I initially proposed to deliver my verdict and reasons on 21 February 2022, this date was altered to 23 February as I was informed that the offender could not attend court because he was unwell.
On 23 February Mr Cruise apparently was again unwell and the proceedings were adjourned to 10 March 2022. However, on 9 March 2022, I was again informed that Mr Cruise was unwell and I made a chambers order that the proceedings be listed for decision on 25 March 2022 at Newcastle. On that date when Mr Zeiser appeared via AVL from custody, Mr Cruise failed to attend court. On that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cruise

Details

AGLC: R v Cruise [2022] NSWDC 498
Case: [2022] NSWDC 498
Decision Date: 16 June 2022

CaseChat Overview and Summary

In the case of R v Cruise, the defendant was convicted and sentenced in the Supreme Court of Victoria for two counts of assault occasioning actual bodily harm. The offences took place in a custodial setting, and involved the defendant inflicting harm with the intent to have sexual intercourse. The court was tasked with determining the appropriate sentence for the defendant's actions.

The primary legal issue before the court was the determination of an appropriate sentence for the defendant's criminal conduct. The court had to consider various factors, including the nature and circumstances of the offences, the defendant's criminal history, and the principles of sentencing relevant to the offence of assault occasioning actual bodily harm. The court also had to weigh the aggravating factors of the custodial setting and the defendant's intent to have sexual intercourse.

In its judgment, the court considered the defendant's criminal history, which included previous convictions for similar offences. The court found that the offences were of significant gravity, given the custodial setting and the defendant's intent. The court also considered the need to protect the community and deter the defendant and others from engaging in such conduct. After weighing all the relevant factors, the court sentenced the defendant to an aggregate sentence of four years, with a non-parole period of two years and nine months. The court imposed a sentence of seven months imprisonment for the first count and three years and nine months imprisonment for the second count, to be served concurrently.

The court's final orders were that the defendant be convicted and sentenced to an aggregate sentence of four years, with a non-parole period of two years and nine months. The defendant was ordered to serve seven months imprisonment for the first count and three years and nine months imprisonment for the second count, to run concurrently.

Orders

Orders of the court

Convicted and sentenced to an aggregate sentence of four years with a NPP of two years nine months (21/4/22-20/1/25). Indicatives:

Count 1 - seven months imprisonment.

Count 2 - three years nine months imprisonment

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Cruise [2022] NSWDC 498
Hearing dates:	14/2/22-21/2/22, 23/2/22, 25/3/22, 8/4/22, 20/5/22, 14/6/22, 16/6/22
Date of orders:	16/6/22
Decision date:	16 June 2022
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Convicted and sentenced to an aggregate sentence of four years with a NPP of two years nine months (21/4/22-20/1/25). Indicatives: Count 1 - seven months imprisonment. Count 2 - three years nine months imprisonment
Catchwords:	Crime – Sentence – Assault occasioning actual bodily harm – Inflict actual bodily harm with intent to have sexual intercourse – Offences occurred in a custodial setting.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Behman v R [2014] NSWCCA 239 Bugmy v R [2013] HCA 37 Nasrallah v R [2021] NSWCCA 207
Category:	Sentence
Parties:	NSW DPP – Crown Peter James Cruise - Offender
Representation:	Mr C Young for Crown Mr P Kondich for Offender
File Number(s):	2020/104640
Publication restriction:	Statutory non-publication of the identity of the complainant.