Citation: Regina v Lee Anthony Cruse [2008] NSWDC 206
Court: District Court of New South Wales
Date: 30 May 2008
Judge(s): Cogswell SC DCJ
Background
The offender had been serving a suspended sentence of ten months imprisonment, imposed on appeal by Judge McLaughlin SC in March 2007 for common assault and malicious damage arising from a drunken incident at a hotel in Eden. The suspension was conditional on the offender entering a good behaviour bond.
On 1 July 2007, the offender breached that bond by committing a series of further offences. Intoxicated following a night of drinking, he broke into his father-in-law's home, took his three-year-old son from the bedroom while grabbing knives from the wall, and bit his father-in-law deeply on the leg during a struggle on the floor. He also punched his brother-in-law. Earlier that same evening, he had damaged a car by punching through its windscreen and intimidated his partner.
The offender came before the District Court for two matters: the revocation of his good behaviour bond, and sentencing for the principal offence of aggravated break and enter and commit a serious indictable offence (assault occasioning actual bodily harm), contrary to s 112(2) of the Crimes Act 1900. Three further offences (malicious damage, intimidation, and assault occasioning actual bodily harm against the brother-in-law) were placed on a Form 1 to be taken into account on sentence.
Legal Issues
- Whether the good behaviour bond should be revoked under s 98(3) of the Crimes (Sentencing Procedure) Act 1999
- How the revived suspended sentences should be calculated and dated, and whether a non-parole period should be set for them
- What sentence was appropriate for the aggravated break and enter offence, having regard to the standard non-parole period of five years, the offender's criminal history, his guilty plea, and the Form 1 offences
- Whether a 25% discount for an early guilty plea was warranted
- Whether special circumstances existed to justify departing from the standard relationship between the non-parole period and the balance of the term
Decision
Bond revocation: The court revoked the good behaviour bond without hesitation. Counsel for the offender made no submission against revocation, which the court described as a realistic and correct position. The breach could not be characterised as trivial, and no good reason existed to excuse it. The revived ten-month sentences were backdated to 1 July 2007 (the date of arrest) and expired on 30 April 2008, meaning they had already been served by the time of sentencing. No non-parole period was fixed for those sentences, given their imminent expiry and the fact that the non-parole period for the principal offence would subsume any parole entitlement.
Principal offence: The court treated the principal offence as falling below the midpoint of objective seriousness for s 112(2), largely because the assault committed inside the premises (the biting) was at the lower end of the scale. However, several aggravating factors elevated the sentence significantly: the offender's extensive criminal record, his entrenched methamphetamine and alcohol addiction, the presence of his three-year-old son during the offending, and his history of domestic violence.
Guilty plea discount: The court applied the maximum discount of 25% available for an early guilty plea, reducing what would otherwise have been a seven-year sentence. The court also took into account the offender's expressed remorse and the Form 1 offences, the latter as a further factor increasing the sentence.
Special circumstances: The court found no special circumstances warranting a departure from the standard ratio between the non-parole period and the parole period. The resulting structure, a non-parole period of three years and six months within a total term of four years and eight months, was considered close enough to the conventional three-to-one ratio.
Orders Made
- Good behaviour bond imposed by Judge McLaughlin SC on 8 March 2007 revoked under s 98(3) of the Crimes (Sentencing Procedure) Act 1999
- Two sentences of ten months imprisonment each, revived and dated from 1 July 2007, expiring 30 April 2008; no non-parole period fixed for either
- For the aggravated break and enter offence (taking into account three Form 1 offences): total sentence of four years and eight months, comprising a non-parole period of three years and six months commencing 1 January 2008 and expiring 30 June 2011, with a balance of term of one year and two months commencing 1 July 2011 and expiring 31 August 2012
Key Takeaways
- Under s 98(3) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must revoke a good behaviour bond unless the breach was trivial or good reasons exist to excuse non-compliance; neither condition was available here.
- Where a revived suspended sentence has nearly expired by the time of the revocation hearing, the District Court may decline to set a non-parole period, particularly where a concurrent non-parole period on a fresh sentence will subsume any parole entitlement.
- The standard non-parole period of five years for aggravated break and enter under s 112(2) of the Crimes Act 1900 operates as a legislative benchmark; the court's starting point of seven years (before discount) reflected aggravating circumstances that took the offence above the standard.
- A 25% discount for an early guilty plea is available at its maximum where the plea is entered at the first reasonable opportunity, and the court here applied that maximum to reduce the sentence from a seven-year starting point.
- Committing an offence in the presence of a young child was treated as a significant aggravating factor, alongside an extensive criminal record and ongoing substance abuse, in calibrating the final sentence above the standard non-parole period benchmark.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break and enter, maximum 20 years, standard non-parole period 5 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 45, 98, 99
Cases:
- The Queen v Veen (No. 2) (1988) 164 CLR 465 (High Court authority on the role of criminal history in sentencing)