R v Rudolph

[2020] NSWDC 137

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Rudolph [2020] NSWDC 137
Hearing dates:	17 February 2020
Date of orders:	09 March 2020
Decision date:	09 March 2020
Jurisdiction:	Criminal
Before:	DCJ Priestley SC
Decision:	See [46 – 49]
Catchwords:	CRIME — Violent offences — Common assault CRIME — Violent offences — Stalking or intimidation CRIME — Property offences — Larceny CRIME — Property offences — Break, enter and commit serious indictable offence — Circumstances of aggravation
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
Cases Cited:	Attorney Generals Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146. DPP (NSW) v Cooke (2007) 168 A Crim R 379 Director of Public Prosecutions v Burrow [2004] NSWSC 433 R v Cooke [2007] NSWCCA 184 R v Fangaloka [2019] NSWCCA 173 in this regard. R v Ponfield [1999] 48 NSWLR 327
Category:	Sentence
Parties:	Regina (Crown) Martin Rudolph (Accused)
Representation:	Crown: Stephenson for the DPP Counsel for the Offender: Mr Hussey for the Offender
File Number(s):	2017/0016494

Judgment

1. Martin Roy Rudolph (“the offender”) appears for sentence on two charges. One is a breach of section 13 (1) of the Crimes (Domestic and Personal Violence) Act 2007 which has a maximum penalty of five years and no standard non-parole period. The other is a breach of section 113 (2) of the Crimes Act of aggravated break and enter with intent, with the matter of aggravation being in possession of a small knife. That offence has a maximum penalty of 14 years and no standard non-parole period.

2. In addition there are matters to be taken into account on a form 1 pursuant to section 166 of the Criminal Procedure Act. There are three such matters being the offences of common assault (section 61, maximum penalty of 2 years), a further offence of stalk/intimidate (section 13 (1)) and a charge of larceny (section 117, maximum penalty 5 years). These matters are to be taken into account when sentencing for the section 113 offence.

3. In regards to the form 1 procedure it is important that the focus remains on the principle offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney Generals Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

The facts

4. The Crown bundle was tendered and became exhibit A and includes the agreed facts which I will refer to so far as necessary. All the offending occurred on 1 and 2 November 2018. It involves two victims being NH and MR. At the time of the offending the offender was aged 41 and was in a boyfriend/girlfriend relationship with NH aged 42. MR is the father of the offender and was aged 67 at the time of the offending. There was a third victim, RS, being a person who owned a property at Coffs Harbour and who was a friend of MR. MR and NH were staying with RS at the time. The offender and his father were in Coffs Harbour to attend a family reunion.

5. I will deal with the offences and the form 1 matters in the order they appear in the agreed facts. The form 1 larceny offence involved the offender approaching NH whilst she was in a motor vehicle, grabbing her mobile phone and running off with it. There was a tussle for this phone. This offence I consider very minor. The second form one matter is a common assault upon MR. MR had gone with NH looking for the offender as he had belongings of NH. The offender then arrived and began yelling at NH and when MR intervened, the offender punched MR causing him to fall over. The offender stood over his father yelling abuse at him and NH was hitting the offender firstly with a beer bottle and then with the heel of a shoe and the offender left.

6. Those events occurred on 1 November 2018. The next morning on 2 November 2018 at about 11:30 AM the offender attended the unit where MR and RS were staying. The offender attempted a disguise using a jumper and towel, though then stated “you’re a fucking dog dad” which would give some indication to MR as to who the disguised person was. MR closed the door and the offender kicked the front door and damaged the lock. This is the s13 offence.

7. The degree of fear that MR felt is not stated. The crime is very unsophisticated and almost certainly would result in detection. I consider this to be at the low end of the range of seriousness of this offending.

8. The next offence being a form one matter is one of intimidation on NH when the offender then walked to the back car park of the premises where NH was and stated to her “don’t make a fucking sound or I’ll fucking kill you. I’ll smash your head”. Other threats were made and the offender left shortly after. The seriousness of this offence is the language used namely the threat to kill. Such threats cannot be lightly disregarded. The facts go on to say that the police were told by the victims that the offender had been using speed before the offending but I am conscious of section 21A (5AA). The facts suggest that this was not a sustained or lengthy incident and for that reason I consider it also at the low range.

9. Later that same day at 2:05 PM the three victims were inside the unit when the offender was outside yelling at them. They told him to go away or they would call the police. The offender kicked the door, broke the lock and caused it to open. He was holding a small paring knife. He walked three paces into the unit toward NH. MR approached the offender with a can of hairspray and screamed for him to leave. NH grabbed a large knife and yelled at him to leave. RS also grabbed an item. The offender left within a couple of minutes. This is the s113 offence.

10. This offence also occurred over a brief period, on the facts “within a couple of minutes”. That said there had been the door kicked in and a weapon wielded albeit a small weapon which was met by the intended victims by a larger knife and other weapons. The offending has the appearance of being thoroughly disorganised and born almost more of frustration given its repeated nature from the day before rather than any great criminal intent. Without intending in any way to understate the seriousness of this offence the facts on this case suggest to me that it is in the low range of objective seriousness.

11. At the time of this offending the offender was on a section 12 bond to expire on 15 May 2019 so that this conduct was in breach of that bond. The matter was adjourned so that the facts of the offence for which the bond was imposed could be made available. What has been provided to the court are papers showing a suspended sentence of 23 months was imposed from 16 June 2017 and with the offender to be released from custody on the section 12 bond. The court attendance notices show there was a charge of common assault under section 61 as well as assault occasioning actual bodily harm under section 59. As I understood what was said in court before me there was an amended statement of facts. The papers do not reveal this but suggest the matter had proceeded or was meant to proceed to a hearing on 16 June 2017 with counsel from Coffs Harbour (assuming Mr Loomes is the same counsel of that name long located in Coffs Harbour) in attendance and then orders were made that day. What seems likely to have occurred is that on that day the hearing commenced and then some version of the facts was either found or agreed and the plea proceeded. Regrettably this is of little assistance to me because I do not know what those facts were.

12. When the matter resumed on 9 March 2020 reference was made to what appears to be the original set of police facts and the parties agreed these were the facts on which the offender was sentenced.

13. Doing the best I can and relying on the statement of an investigating officer Wang, to the extent consistent with the facts now relied upon, the offender had assaulted his then partner two days before the police attended. At that time the officer said he could see two bruises on the victim’s right upper arm which were fading and only slightly visible about 2 cm x 2 cm consistent with the facts which state there were two punches by the accused to the victim (his then de facto partner), which occurred due to an argument about answering a phone. The offender also placed a pillow over the victim’s face, twice, exerting pressure each time. The offender gave a recorded interview which was with the papers and denied the allegations and in which he gave a version of events of an argument with some pushing by both parties and asserting it was mostly self-defence. The offender later pleaded to the charges as referred to above.

14. What can be said is that this was another domestic violence matter. The two offences the subject of the bond carry maximum terms of five years and two years. The harm suffered by the victim appears to be limited to the bruising described above. The current offending occurred some 22 months after the offending for which the bond was imposed. There is nothing to suggest that the former partner has been subject to any inappropriate contact by the offender since the bond was imposed. Following the breach of the bond the almost 3 months of custody occurred.

15. The fact remains however that the bond has been breached, and the accused has clearly not been of good behaviour. The failure to comply could not be described as trivial; there is the illegal taking of drugs, and the 5 offences that are being dealt with. For me to not revoke the bond I need to be satisfied that there are good reasons for excusing the offenders failure to comply with its conditions, namely to be of good behaviour; see the former s98(3) of the CSPA.

16. This question was considered by DPP (NSW) v Cooke (2007) 168 A Crim R 379. Howie J in that case cited Hidden J in Director of Public Prosecutions v Burrow [2004] NSWSC 433 to support the proposition that good reasons included extenuating circumstances of the offending conduct in breach of the bond, such as driving whilst having more than the permitted amount of alcohol in order to get to hospital when your wife had unexpectedly gone into labour. Hidden J made it clear no general rule could be set. Here, the closest we have to extenuating circumstances are the infidelity of the girlfriend with the offender’s father. This led to another domestic violence offence. This is the very type of behaviour that was the subject of the bond. Whilst the degree of angst that might be caused is understandable, the resort to violence is exactly what is being punished and should not be occurring again.

17. Accordingly I will revoke the bond. This means that there will be a sentence of imprisonment of 23 months to date from today. However, it is permissible for that to be served by way of an ICO, a course that both the Crown and Mr Hussey concurred with and which is supported by s99(3) as in force at the time and which here has continued effect by the transitional provisions.

18. In R v Cooke [2007] NSWCCA 184 (the same Mr Cooke, but the second time to the Court of Criminal Appeal) it was said at [18]:

19. A Court exercising the jurisdiction to call an offender before it for breach of a good behaviour bond as provided for in s 98(1) should, if it determines to revoke the bond under s 98(2)(c) or s 98(3), make that order before determining what, if any, further order will be made consequent upon the revocation and before considering what, if any, penalty will be imposed for the conduct giving rise to the breach. This has the virtue of making the exercise of discretion under s 99 a demarked and separate sentencing exercise, although we note that s 99(4) provides that this will be the effect of a sentence imposed under the section in any event. Sentencing for the breach first also allows for the principle of totality to operate in the event that both the breach and the conduct giving rise to it are punished by a term of imprisonment. (bold added).

20. The first bolded extract is a reference to the decision as to whether to revoke the bond as being separate to what sentence may then be imposed. This is perhaps more applicable to bonds other than section 12 although there remains a consideration of whether to proceed by way of an ICO. The second bolded extract above speaks of the principle of totality in connection with the sentence for the breach and the sentence for the conduct giving rise to the breach. For this reason I have formed the view that section 68 applies in this case so that if there are to be two or more intensive correction order is made in this case the duration of the term of imprisonment imposed for all the offences must not exceed three years.

21. For the same reasons as I outlined below in connection with the current offending I consider that it is appropriate to impose an ICO in respect of the suspended 23 months sentence.

22. I return now to the sentence considerations for the present offending.

23. It is a matter of aggravation of the most recent offending that the offender was on conditional liberty at the time and I take that into account. I also take into account that the section 113 offence occurred at the home of RS.

Subjective matters

24. The offender pleaded guilty in the Local Court and was committed for sentence, and I will allow for a 25% discount on sentence as a result.

25. The offender relied on a psychological report of Dr Rebecca Smith dated 6 December 2019 and a letter from Connect Global Limited dated 12 February 2020. The offender also gave evidence.

26. In his evidence the offender stated that he realised that he was acting in a jealous rage at the time of the offending. He said he was truly sorry and would himself have been scared had he been in the position of the victims. He said he was in a bad place and in what I found compelling evidence stated that the weekend had brought up issues with his father. Those issues included that his father had been a perpetrator of domestic violence both physical against the offender’s mother and according to the offender also sexually against his mother which he could remember from the age of eight or nine. The offender said that when he turned 18 he and his brother moved their mother out of the house and warned their father off. On the offender’s evidence his father was sleeping with NH on the weekend the offending occurred. My view is this gives some context to the overall circumstances of this offending. I take these matters into account.

27. The offender described “Connect Global” as something of his salvation. This is apparently an organisation with a religious base and the offender stated that he had now “given my life to the Lord”. With the greatest respect to all involved hearing about people being converted to a life of faith on the road to the sentencing hearing is something that is difficult to view without some degree of circumspection. A large part of the offender’s subjective case was that he has been able to see the error of his ways and has undergone alcohol rehabilitation and education through Connect Global. Putting aside the faith-based aspect of that program the evidence is that he has taken part in the program over a 10 month period and recently had to move out to make space for another resident, the point being that he has completed the course. The offender wishes to remain involved either with that program or its associated activities and has been and wishes to continue to be active in community projects. His plan is to live in the Newcastle area to facilitate this which has the added benefit of being a fair remove from the Coffs Harbour area where he has family connections and where the trouble has been with these offences. One exception to that is that he presently lives with an aunt at Corindi Beach where he will continue to live pending finding accommodation in the Newcastle area. In his evidence he said that his aunt was a Christian woman and gave the clear impression that her home was free of the temptations of drugs and alcohol.

28. The fact that the offender has undertaken a 10 month course of drug and alcohol rehabilitation clearly supports his case of good prospects of rehabilitation, and also supports his assertions that he is remorseful. It gives a basis for finding as I do that his prospects of reoffending are less now than they were at the time of the offending though the strength of addiction to drugs such as ice and the possibility of relapse cannot be totally discounted and will need to be constantly guarded against by the offender. This continuing need to aid rehabilitation is a strong factor in favour of utilising the ICO procedure, and I note the judgment of Basten JA in R v Fangaloka [2019] NSWCCA 173 in this regard.

29. The offender also swore that the history he gave to Dr Smith was true. The offender gave Dr Smith a background of a “nightmare” upbringing with a racist and very violent father who he was scared of. The offender first took speed at the age of 13 or 14 when helping his father, a musician, playing in nightclubs.

30. The offender managed to complete his High School Certificate and later gained a certificate 4 in Transport and Logistics and worked in warehousing. It was in his mid-20s that he was introduced to ice whilst doing night shifts which led to a lost relationship and a lost job and problems with the drug ever since. Whilst not working since entering rehab 10 months ago he is hopeful that he will find work now. Unlike many who are sometimes seen in this situation he does have a work history to fall back on. My view is the greater the likelihood of finding work the greater the likelihood of a successful rehabilitation.

31. It is a concern that five years ago the offender became abstinent for a six-month period and then reunited with his daughter’s mother only to start using drugs again after meeting a dealer without any apparent other trigger. It was at the end of this period that the current offences occurred and this period including living on the streets.

32. Dr Smith considered the offender to be sincere. She considered him stable at the present time. She considered him to be now confident and optimistic with a clear sense of purpose.

33. The view I formed of the offender is consistent with those expressed by Dr Smith. In short he does appear to be motivated to remain on the path of rehabilitation.

34. I have noted above the offenders plea of guilty and take that into account. There is no dispute that he should benefit by the 25% discount for the utilitarian value of that plea.

35. I largely accept the submissions made on behalf of the offender some of which have already been noted and including his early plea, the low level of planning, the short duration of the offending when the individual offences are looked at, the background to the offending involving intense personal relationships and the personal background of the offender.

36. Adverse to the offender is a criminal history which disentitled him to leniency. It is of concern that history includes earlier occasions of assault. That said there is some cause for optimism in that the offending started at the age of 21 in 1998 but that between the period 2003 to 2017 the only offending was a PCA in the high range in 2009, a possess drug charge in 2004 (where a $150 fine was imposed) and some stealing matters in 2012. It was submitted that apart from the offending occurring whilst on conditional liberty there was an absence of Ponfield factors; it is arguable that there is another factor such as the offence occurring when the offender knew the premises would be occupied but largely I find that the submission is well made.

24. The plan of the offender is should he remain in the community to maintain his rehabilitation efforts, to hopefully reconnect with his 14-year-old daughter, to contribute to the community and obtain employment.

25. The offender has spent two months and 24 days in custody since his arrest for this offending.

Sentencing options

39. The seriousness of the section 113 offence all but dictates that the section 5 threshold is crossed. So much was conceded by the offender. That said whilst the Crown agreed with that view the Crown did not wish to be heard to argue against proceeding by way of an ICO.

40. After some deliberation I consider that the common ground of the parties is the correct way to proceed. A reservation I had was not as to whether an ICO should be imposed but whether the matter in all the circumstances passed the section 5 threshold. The commonly used expression “section 5 threshold” is in my view an unhelpful shorthand term. The words of section 5 are that “a court must not sentence an offender to imprisonment unless it is satisfied having considered all possible alternatives that no penalty other than imprisonment is appropriate”. It is not a presence of a threshold that needs to be crossed, it is an absence of any other appropriate route that is needed. The circumstances of this case are of a 41 year old man with a toxic relationship with his father discovering on a weekend away for the purpose of a family reunion that his 67 year old father is sleeping with his girlfriend. His behaviour thereafter is totally unacceptable and whilst it constitutes the offence of break and enter into a home for the purpose of committing serious indictable offence, it can equally be characterised as somebody acting out of a sense of anguish borne of severe abandonment and betrayal. The facts fairly state the offender took 3 steps into the premises, indicative in my view of the minor nature of the s113 charge.

41. In order to adopt this course I need to consider the charges separately, and when considering the s113 charge, I need to take into account the form 1 matters in the way referred to above.

42. It is also necessary to take into account section 4A and 4B of the Crimes (Sentencing Procedure) Act given the domestic violence nature of this offending. Section 4A can be satisfied by a supervision order. Section 4B prevents the making of an ICO unless the sentencing court is satisfied that the victims of the offending and anyone with whom they are likely to reside will be adequately protected whether by the conditions of the intensive correction order or for some other reason. It was agreed between the parties that the father and former girlfriend now live in Queensland. Presumably RS remained in Coffs Harbour; no evidence suggests otherwise. I am satisfied that the safety of these victims is adequately protected for a number of reasons. Firstly in respect of RS because his involvement was incidental to the fact that the other two victims were located where he was. Secondly in respect to all three of the victims the offender intends to reside in the Newcastle area well away from the known residences of the victims. Thirdly because I accept the case put for the offender as to his continuing rehabilitation which when taken with the fact that I consider his drug use a major contributor to his offending (but which I have not taken into account in mitigation of sentence) means the likelihood of such offending occurring is progressively lessening. Fourthly any ICO imposed will have a condition that the offender not reside more than 100 km north of the city of Newcastle which would place him well south of Coffs Harbour and obviously well south of Queensland.

43. In respect of the stalk/intimidation offence I am not satisfied that that is a matter where no other sentence than one of imprisonment is appropriate. As noted above it was brief and consists of one offensive remark addressed to his father in emotionally strained circumstances against the history of a strained relationship in any event. I propose proceeding by way of a community correction order on that count. Given that the community correction order will necessarily commence from the date of the order and given the 10 month period already spent in rehabilitation and given also that it will be concurrent with the ICO I propose it be for a six-month period with the standard conditions.

44. In respect of the section 113 offence I need to bear in mind and take into account the matters set out in the form one. But for that it would have been a very close consideration as to whether a custodial sentence was necessary. Even then I would note that the larceny charge of stealing the ex-girlfriend’s mobile phone would not call for a term of imprisonment. The other two matters however on the form 1 go hand-in-hand with the very type of offending being carried out by the aggravated break and enter with intent. My view is that, after allowing for the 25% discount for the early guilty plea, the appropriate sentence is 12 months. In all the circumstances and not least because of the 10 month period of rehabilitation already undertaken, and the need to continue to promote and assist in the rehabilitation, I consider that an ICO is appropriate. The characteristics of this offender since his offending persuade me that it is in the better interests of the community that he not be incarcerated and I note in any event he has spent almost 3 months incarcerated since the offending. I will therefore impose an ICO for that 12 month period. Given the imposition of an ICO and in accordance with section 45 CSPA I decline to set a non-parole period.

45. There is therefore a total term of imprisonment of 35 months, so that the proposed orders are permitted by section 68(3).

46. It was not submitted by either the accused or the Crown that the ICO’s should not be concurrent. I consider this appropriate, given that the s12 bond of 23 months had one month remaining at the time of the most recent offending.

Orders

47. Martin Roy Rudolph, in respect of the matters being sequence 4 and sequence 11 of the matters charged you are convicted.

48. The section 12 bond is revoked and I impose an ICO for a term of 23 months to date from today, 9 March 2020 with the standard conditions.

49. In respect of the sequence 4 matter being the section 13 (1) Crimes (Domestic and Personal Violence) Act matter I impose a community correction order with the following terms:

1. the CCO will commence today 9 March 2020.

2. The CCO is for a term of six months.

3. The CCO will have the standard conditions that you not commit any offence and that you appear before the court if called on to do so at any time during the term of the CCO.

50. In respect of the s113(2) Crimes Act offence of aggravated break and enter with intent and taking into account the matters on the Form 1, I sentence you to a term of 12 months imprisonment to be served by way of an intensive correction order on the following terms:

1. the ICO will commence today, 9 March 2020.

2. It will be for a term of 12 months.

3. You must not commit any offence and that you must submit to supervision by a community corrections order.

4. You must not consume or possess illicit drugs.

5. You must reside within 100 km of the city of Newcastle New South Wales.

6. You must not stalk, intimidate, harass or approach either physically or by any other means of communication your father Mason Rudolph or NH.

**********

Amendments

24 April 2020 - * Correction of spelling at 2

* Removal of name from Judgment.

Decision last updated: 24 April 2020