Regina v Lee Anthony Cruse

[2008] NSWDC 206

CITATION:	Regina v Lee Anthony Cruse [2008] NSWDC 206
JUDGMENT DATE:	30 May 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Sentenced to imprisonment for four years and eight months with a non-parole period of three years and six months.
CATCHWORDS:	Criminal law - Sentence - Breach of bond - Aggravated break and enter and commit serious indictable offence (assault occasioning actual bodily harm) - Form 1 offences: malicious damage, intimidation & assault occasioning actual bodily harm - Standard non-parole period - Extensive criminal record - Methylamphetamine addiction - Alcohol abuse - Offence committed in the presence of a child (3 yr old) - Victim impact statement
LEGISLATION CITED:	s112(2) Crimes Act 1900 ss 12, 98, 99 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	The Queen v Veen (No. 2) 164 CLR 465
PARTIES:	Regina Lee Anthony Cruse
FILE NUMBER(S):	2007/0854
SOLICITORS:	Mr P. Stanley for the NSW DPP Mr J. Edmunds for the offender

SENTENCE

1. I will deal firstly with the breach of the bond. Lee Cruse has been called up before me because he has breached a good behaviour bond. The good behaviour bond was imposed on 8 March 2007 by his Honour Judge McLaughlin SC. It was imposed when Mr Cruse appealed from a magistrate who had sentenced him to imprisonment for two months. He was sentenced to imprisonment because he had pleaded guilty to one common assault and one malicious damage.

2. Briefly, the offences occurred on 14 October 2006, when Mr Cruse was drunk and at The Australasian Hotel in Eden. Whilst he was drunk he had been excluded from the hotel, he threw items at the hotel and used his fists to shatter the glass in doors and windows. In addition he threatened to kill the manager and threw punches at him, hitting him twice to the side of the neck.

3. Judge McLaughlin allowed his appeal and after giving him what is known as the “Parker ” direction sentenced Mr Cruse to ten months imprisonment instead of two months imprisonment. The ten months imprisonment was for each offence. However, his Honour suspended the sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999 . The suspension was on condition that Mr Cruse enter into a good behaviour bond with certain conditions. One of them of course was to be of good behaviour.

4. Mr Cruse is before me because he has not been of good behaviour. On 1 July 2007 he committed a number of offences, including one of aggravated break and enter and commit a serious indictable offence. He broke into his father-in-law’s premises and assaulted his father-in-law by biting him seriously on the leg. In addition he did damage to a car, intimidated a woman (his partner Linda) and assaulted his brother-in-law.

5. In those circumstances he comes before me in these proceedings for breach of the good behaviour bond. The relevant section that I need to apply is section 98 of the Crimes (Sentencing Procedure) Act . Subsection (3) of that section provides that I must revoke the bond unless I am satisfied that Mr Cruse’s failure to comply with the conditions of the bond was trivial or that there are good reasons for excusing his failure to comply with the conditions of the bond.

6. Mr Edmonds, who appears for Mr Cruse, does not make any submission that there is a basis for me not to revoke the bond. That is a realistic, appropriate and in my respectful view a correct submission. There is no way that the breach can be described as trivial and I can see no good reason for excusing his failure to comply with the conditions of the bond.

7. Accordingly I am obliged to revoke the bond under section 98(3) of the Crimes (Sentencing Procedure) Act . The consequences of such a revocation are dealt with in section 99. By reason of section 99 (1)(c) the order made by his Honour Judge McLaughlin suspending the execution of the sentence ceases to have effect and certain other provisions of the Crimes (Sentencing Procedure) Act apply.

8. Mr Cruse was arrested on 1 July 2007, the day that he committed the offences which amounted to the breach of the bond. He has been in custody since then. Mr Edmonds submitted that the execution of the sentences revived by the revocation of the bond should date from that day and I agree. If they date from that day, the two ten month sentences will expire tomorrow 31 May 2008. I do not propose to fix a non-parole period in respect of those sentences because of their imminent expiry.

9. Accordingly the orders I make in this matter are as follows. Under section 98(3) of the Crimes (Sentencing Procedure) Act 1999 I revoke the good behaviour bond imposed by Judge McLaughlin on 8 March 2007. Pursuant to section 99(1)(c) I sentence Mr Cruse in respect of each of the two offences to ten months imprisonment to date from 1 July 2007 and to expire on 31 May 2008. In accordance with section 45 of the Crimes (Sentencing Procedure) Act I decline to set a non-parole period for these sentences. It is appropriate not to set a non-parole period for two reasons. One is because of the antecedent character of Mr Cruse (he has a long history of offending), this being a relatively short sentence. The other reason is because I am about to sentence him in respect of the crime he committed on 1 July 2007 and the non-parole period in respect of that sentence will subsume any parole which I would allow him for this sentence.
Are there any other formal orders I need to make in respect of the breach proceedings?

STANLEY: There’s not your Honour but my calculations ten months from 1 July would be to 30 April.

HIS HONOUR: Yes.

STANLEY: But I’ll stand to be corrected.

HIS HONOUR: You’re quite right. Yes, that sounds right Mr Edmonds.

10. The sentence will commence on 1 July 2007 and expire on 30 April 2008.

11. Mr Cruse I have now sentenced you for your very bad behaviour at the pub down at The Australasian in Eden. The magistrate gave you two months, Judge McLaughlin gave you ten months and suspended it. Because you have breached the bond, that ten months I have now sentenced you for. I have commenced the sentence on 1 July when you were arrested at your father-in-law’s place. The ten months expired a month ago on 30 April so you have served that sentence. Do you understand that?

OFFENDER: Yes.
HIS HONOUR: They were two sentences, each of ten months and running at the same time. Do you understand that?

OFFENDER: Yes.
HIS HONOUR: They have both expired.
I am now going to sentence you for the crimes you committed at your father-in-law’s place, do you understand?

OFFENDER: (No verbal reply)
12. I have to sentence Lee Anthony Cruse for an offence of aggravated break and enter and commit a serious indictable offence. The offence was committed on 1 July 2007. The offence is against s 112(2) of the Crimes Act 1900 . Such an offence carries a maximum of twenty years imprisonment. In addition, Parliament has fixed a standard non-parole period of five years to that offence.

13. Exhibit A contains a brief summary of what happened. Mr Cruse and his de facto wife, Linda Cunning, had at that stage a three-year old son. He is obviously now four. Linda Cunning also had an older daughter from a previous relationship. They dropped off the children at her parents’ place on the evening of 30 June 2007. They went out drinking.

14. Whilst they were drinking at a public place the two began to argue. Mr Cruse chased Ms Cunning outside and whilst he was pursuing her, he punched his fist through the front windscreen of a car. That action amounted to malicious damage of the car and he was charged with that. After he did that, Linda Cunning got back inside the hotel where they were drinking. Mr Cruse had been chasing her and the staff ensured that she was locked up. For his behaviour towards her, he was charged with intimidation.

15. Mr Cruse left the hotel and went back to his parents-in-law’s place to collect his son. The security guard alerted Mr Cunning senior who was known to him. When Mr Cruse got back to the Cunnings’ house, he broke open the closed back door. He came in calling out “ I’m going to take my son .” He was angry, agitated and drunk. Mr Ron Cunning, his father-in-law tried to calm him down but he went and took his son from the bedroom. Mr Cunning tried to settle him down but Mr Cruse headed towards the back door with his son in his arms. He grabbed a number of knives from a board on the wall next to the back door.

16. Mr Ron Cunning’s son James came to assist his father. He grabbed Mr Cruse’s wrist and made him drop the knives. The three of them fell to the floor. They were struggling on the floor and Mr Cruse bit Mr Ron Cunning on his leg above the right knee. He clamped his teeth in the flesh for what Mr Ron Cunning describes as a couple of minutes. He settled down but when he got up again, he got angry and started swinging punches several of which hit Mr James Cunning.

17. Those punches amounted to a third offence that he was charged with of assault occasioning actual bodily harm to James Cunning. He picked up a knife again but by this time the police arrived and subdued him and arrested him and charged him. The serious indictable offence which he committed in breaking and entering was the assault occasioning actual bodily harm on Mr Ron Cunning. I have seen photographs of the broken back door lock and of the very ugly looking wound on Mr Ron Cunning’s leg.

18. It is important to appreciate that Mr Cruse has a long criminal record. He was born on 23 November 1976 so he is now thirty-one. He turned eighteen on 23 November 1994. Since then he has convictions for breaking and entering and stealing, and breaching orders such as Community Service Orders. His first time in prison was ten years ago. Other offences include assaults and entering enclosed lands and stalking and intimidating and maliciously destroying or damaging property. He has served numerous short periods of imprisonment for these offences. He has also been convicted of larceny and assaulting police. He has numerous driving offences. He has had the benefit of bonds under s 12 suspending the sentences imposed for various offences. He has, as I have said, a bad criminal record.

19. I should refer to some personal information about him. There was a pre-sentence report dated 21 January 2008. It noted that he had been subject to supervision before. Generally, his response has been inadequate. He left school at fourteen and has had several short-term labouring positions. He started using alcohol and illegal drugs when he was at school. He has used all sorts of drugs, the most recent one that he was using was methylamphetamine. He was drunk at the time that he committed this offence. He had also taken some methylamphetamine.

20. In summary, the report described him as a man who appears to have a serious problem with substance abuse and corresponding violent behaviour. He was considered unlikely to benefit from supervision by the Service and is unsuitable for a Community Service Order and ineligible for periodic detention.

21. He was seen by an experienced forensic psychologist, Anna Robilliard, who prepared a report dated 22 October 2007. She reports past efforts at rehabilitation. He has been to several centres. One of them he stayed at for some months and then remained sober for nine months. He reported to her that he deeply regretted his behaviour. He realised he had terrified his son and acknowledged that he had been through the same with his own father. Ms Robilliard assessed him as being at extreme risk for continuing legal problems should his current substance abuse remain unchanged. She thought his commitment to rehabilitation was conditional. She was of the opinion that he needs to commit himself to a long-term intensive substance rehabilitation programme. It should be at least twelve months. He should go directly from custody to such a programme.

22. I heard evidence from Mr Cruse himself and from his grandfather, well known and well respected Aboriginal elder, Oswald Cruse. Mr Cruse senior is the offender’s mother’s father. He is a pastor and lives in Eden. He gave an account of a particular traumatic event in his grandson’s life when his grandson, at a young age, witnessed the violent and horrific death of a mate who was run over by a truck. He was of the view that his grandson needed prolonged and sustained rehabilitation with special counselling. He agreed with Ms Robilliard’s views. There are several programmes that Mr Cruse senior has been involved with which would be suitable. He said how his grandson had behaved very well on one such programme which he had undertaken in the past.

23. When Mr Cruse himself gave evidence, he acknowledged his addiction to alcohol and drugs and the offending behaviour that occurs when he is under their influence. His de facto wife Linda has several problems. He was diagnosed with depression and treated for it by medication in custody but the side effects of the medication were uncomfortable and he came off that medication but is now on methadone. He stopped using methadone a short time ago. He had a good relationship with his father-in-law and brother-in-law until these things happened. He said he could never forgive himself. His son is now aged four and is named Matari Walkan. He is in regular contact with his son whilst in prison, that is by telephone. He wants to undertake a rehabilitation course when he is released. He acknowledges that his relationship with his in-laws is probably permanently damaged. He has remained drug-free in custody and is on protection at Parklea. He had been on protection previously at Goulburn. He acknowledged in cross-examination to Mr Stanley who appears for the prosecution, that he had promised to courts on previous occasions that he would rehabilitate himself and not re-offend, but he had not kept to his promises. He acknowledged that, as Mr Stanley put to him, he is prepared to talk the talk but not walk the walk. He could not distinguish this particular occasion from others.

24. I have read two references from Pastor Oswald Cruse as well about his grandson and taken those into account. He describes his grandson when sober and at home as “ a kind and gentle father who has taken up painting, gardening and the first to assist in voluntary work projects on a youth camp. ”

25. As I said, this offence carries a standard non-parole period. A preliminary question is whether that standard non-parole period applies to this case. It applies according to s 54B of the Crimes (Sentencing Procedure) Act unless I determine that there are reasons for setting a non-parole period that is shorter than the standard non-parole period. The standard non-parole period is intended for a middle range case. So the question I must ask myself is whether there are any reasons for departing from the standard non-parole period in this case. I do find reasons, there are two.

26. The first is that Mr Cruse has pleaded guilty at an early opportunity. The second is that I do not regard this offence as being in the middle of the range of objective seriousness. That is because, as bad as it was, the offence he committed when he broke in was at the bottom of the range in seriousness of serious indictable offences that could be committed whilst he was inside. Assault occasioning actual bodily harm, like larceny, carries a maximum of five years’ imprisonment.

27. Having said that, this offence was a shocking offence. There are a number of aggravating features of the offence. One is that the offending behaviour involved the use or threatened use of a weapon when he brandished the knives. A second is that it was committed in the presence of his own then three-year old son. A third is that it was committed at the Cunnings’ home. A fourth is that it was committed whilst he was on a good behaviour bond. In other words he had been released by the courts instead of being sent to prison, as the magistrate had done so, and back into the community on condition that he behaved himself. He breached that condition.

28. I have taken into account as well the victim impact statement which was prepared by Mr Ron Cunning. He describes the wound from the bite as a permanent scar which is a daily reminder of an attack that he believed would see himself or his son dead. This must have been a shocking experience. He said that he is constantly worried for the safety of his family. He no longer gets a good night’s sleep. As he said, this behaviour has robbed him and his family of peace of mind and feeling safe. His wife has had to leave work. I take into account those matters insofar as they affect Mr Ron Cunning. I do not regard that as amounting to substantial emotional harm although it is clearly significant.

29. In addition, he has a serious criminal record which, the parties agree, I should take into account, in the sense referred to by the High Court in the Queen v Veen (No. 2) . There is clearly an increased need for me to take into account the deterrence that Mr Cruse needs from committing further offences. It increases the significance of personal deterrence.

30. I take into account the mitigating factors which Mr Edmonds has drawn my attention to, namely the evidence which his client gave, the remorse which he felt and the plea of guilty. I have taken into account the statistics which I have been referred to.

31. Mr Cruse’s prospects of rehabilitation are not good. I do hope that he commits himself to rehabilitation but his past record does not enable me to find that his prospects are good. He is also at a high risk of re-offending if he returns to substance abuse. I accept Mr Stanley’s submission that general and specific deterrence are important.

32. I would regard an appropriate overall sentence for this offence as seven years. That is because although he is not in the middle of the range of objective seriousness for the reasons that I have given, the aggravating factors which accompany it require a significantly deterrent sentence. A seven-year sentence would attract a non-parole period in the region of five years. Because Mr Cruse has pleaded guilty at an early opportunity, I am going to allow him the maximum of twenty-five per cent as a discount. Accordingly, I would regard an appropriate sentence to be in the region of five years with a non-parole period of just under four years. I here take into account that the offence he actually committed whilst inside was at the lower end of the range and I take into account his expressed remorse and I propose to fix an overall sentence for this crime of four years and eight months. I fix a non-parole period of three years and six months. The sentence is to date from 1 January 2008. I do not find that there are any special circumstances which will warrant me altering the relationship between the non-parole period and the parole period. The relationship in this sentence is close enough to three to one. I have taken into account in fixing this sentence, which is a further factor for it being increased, the offences on the Form 1. Would you stand up Mr Cruse?

33. For the offence of aggravated break, enter and commit assault occasioning actual bodily harm, and taking into account the three offences on the Form 1, I fix a non-parole period of three years and six months to date from 1 January 2008 and to expire on 30 June 2011. The balance of the term will be one year and two months to commence on 1 July 2011 and to expire on 31 August 2012.
Have a seat Mr Cruse. Are there any other orders which I need to make?

STANLEY: No your Honour.

HIS HONOUR: No, because it’s not one that I fix parole in?

STANLEY: No your Honour.

HIS HONOUR: Now - fix the sentence. I don’t think there are any other orders are there?

STANLEY: No your Honour.

HIS HONOUR: Okay. I’ll now adjourn.

oOo