AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 27 October 2017

R v Lodge

[2017] NSWDC 319

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE IN COMPANY ASSAULT OCCASIONING ACTUAL BODILY HARM

Citation: R v Lodge [2017] NSWDC 319
Court: District Court of New South Wales
Date: 27 October 2017
Judge(s): Berman SC DCJ

Background

The offender, a 26-year-old man, broke into the home of his former partner of six weeks after she refused to open the door to him. He forced a leadlight panel from the front door and entered the premises in company with an unidentified male, knowing that a three-year-old child was inside. A male friend of the former partner was also present in the home.

Once inside, the offender immediately attacked the male friend, punching him repeatedly. The other unidentified male joined in the assault. The victim sustained a cut to the nose, a swollen eye, bruising to the forehead, cuts to both hands, and a bruised elbow.

The offender turned himself in to police the following day, participated in an interview, and admitted the conduct. He subsequently pleaded guilty at the earliest opportunity to one count of aggravated break, enter and commit a serious indictable offence, with the serious indictable offence being assault occasioning actual bodily harm. The specified circumstance of aggravation was that the offender knew persons were inside the premises; the offender being in company constituted a further aggravating feature.

  • What sentence was appropriate for an offence of aggravated break, enter and commit a serious indictable offence, given the objective seriousness of the conduct and the offender's personal circumstances?
  • Whether a sentence other than full-time custody could be justified, having regard to the standard non-parole period of five years and the claimed rehabilitation of the offender.
  • Whether the matter should be adjourned under section 11 of the Crimes (Sentencing Procedure) Act to allow the offender an opportunity to demonstrate genuine rehabilitation before final sentence.

Decision

Berman SC DCJ assessed the offending as serious, emphasising that it occurred inside a residential home, at night, in company, while a three-year-old child was present and screaming. The offender's stated purpose of retrieving belongings was rejected as the true motivation; his statements to police revealed the assault was driven by jealousy. The alcohol consumption that evening was afforded no mitigating weight, given the offender's established pattern of alcohol use and associated violence.

The offender received a 25 per cent discount on sentence for his early guilty plea, consistent with his admissions to police. His criminal history included a prior break and enter (initially resulting in imprisonment, reduced on appeal) and a prior domestic violence offence, which was relevant given the domestic violence context of the current offending. References and claims of rehabilitation were considered, but the employer reference was noted to make no mention of the offender's criminal history.

His Honour stated in unambiguous terms that, sentencing on the day, full-time custody would follow without hesitation. The standard non-parole period of five years applied to the offence, and the authorities direct that sentences other than full-time custody for such offences should be rare. However, the court was prepared to give the offender a period to demonstrate authentic change before final sentence was imposed.

The matter was adjourned under section 11 of the Crimes (Sentencing Procedure) Act to 6 July 2018, with strict conditions attached to the offender's continued bail. His Honour made plain that even successful compliance would not guarantee a non-custodial outcome, but that demonstrated rehabilitation could reduce the time ultimately spent in custody, and might, with no promises made, result in an alternative to full-time imprisonment.

Orders Made

  • Sentencing adjourned under section 11 of the Crimes (Sentencing Procedure) Act to 6 July 2018 in Sydney.
  • The offender to continue on bail with the following additional conditions:
  • No use of illegal drugs whatsoever.
  • Supervision by the Probation and Parole Service.
  • A pre-sentence report ordered for the next occasion.
  • Regular urinalysis at least fortnightly, with results to be provided to the Court; testing to be arranged at the offender's own expense if the Probation and Parole Service does not arrange it.

Key Takeaways

  • Aggravated break, enter and commit a serious indictable offence carries a standard non-parole period of five years in New South Wales, and sentencing authorities direct that alternatives to full-time custody for such offences should be rare.
  • The District Court found the offending particularly serious because it occurred in a private home, in company, in the presence of a young child, and was motivated by jealousy rather than the stated purpose of retrieving property.
  • An early guilty plea, consistent with admissions made to police at the time of arrest, attracted a 25 per cent sentencing discount.
  • Under section 11 of the Crimes (Sentencing Procedure) Act, a sentencing court may adjourn proceedings to allow an offender to demonstrate rehabilitation before final sentence, though this does not guarantee a non-custodial outcome.
  • Prior criminal history, including prior domestic violence and prior break and enter offending, formed part of the sentencing assessment and reinforced the gravity of the current conduct.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), sections 9 and 11

Cases:
No specific cases were cited in the judgment.