Citation: R v Lodge [2018] NSWDC 199
Court: District Court of New South Wales
Date: 6 July 2018
Judge(s): Berman SC DCJ
Background
The offender pleaded guilty to aggravated break, enter and commit a serious indictable offence, with the serious indictable offence being assault occasioning actual bodily harm. The circumstances of aggravation were that the offender knew there were people inside the premises. He could also have been charged with being in company, though that aggravating factor was not ultimately relied upon.
The offending arose from a relationship breakdown. While intoxicated and self-described as a proud and undefeated fighter, the offender broke into the home of his former partner late one evening, smashing through a glass door panel to gain entry. A child was present and screaming. Despite being told this, the offender proceeded to the bedroom and punched a man he found there, continuing the assault even as the man repeatedly said he did not want to fight. A companion of the offender joined in the attack. The victim sustained injuries to his face, head, and hands.
The matter came before the court at the conclusion of a section 11 adjournment. At an earlier sentencing hearing on 27 October 2017, the judge had adjourned sentencing under section 11 of the Crimes (Sentencing Procedure) Act to give the offender an opportunity to demonstrate genuine rehabilitation, noting even then that this was a generous approach given the seriousness of the offending.
Legal Issues
- Whether the section 11 adjournment had produced sufficient evidence of rehabilitation to warrant a non-custodial or non-fulltime custodial sentence
- The appropriate sentence for aggravated break, enter and commit a serious indictable offence, having regard to the standard non-parole period of five years and maximum penalty of 20 years
- Whether intoxication constituted a mitigating factor in the circumstances
- Whether an Intensive Corrections Order (ICO) assessment was appropriate
Decision
His Honour reflected that allowing the section 11 adjournment had itself been a generous step, a characterisation the Crown adopted. The offence was described plainly as a home invasion: the offender had broken into someone's home while drunk, jealous, and motivated by a sense of entitlement, terrorised the occupants, and continued the assault despite knowing a child was present and screaming.
The court found that intoxication was not a mitigating factor. This was so both because the legislation directs that it is not, and because the offender's criminal history already included offences arising from the combination of alcohol use and violence. The early guilty plea was noted as a relevant factor, though no specific quantitative discount was articulated. His Honour said the plea was one of several factors contributing to the decision to consider a different form of sentence.
The offender had made some genuine progress during the adjournment period. He had changed employment, moved out of his parents' home, and engaged voluntarily with a psychologist for anger management. Urinalysis and saliva swab results, while not formally produced as required by bail conditions, were reported through an updated pre-sentence report as negative across fifteen tests. The court accepted, on that basis, that the offender had not been using drugs.
His Honour was satisfied that a custodial sentence was required but considered it likely to be less than two years. There was, accordingly, at least the possibility that an Intensive Corrections Order might be appropriate. The matter was adjourned for an ICO suitability assessment, with the court making clear that a failed drug test or any deterioration in the offender's conduct during the assessment period would result in fulltime imprisonment.
Orders Made
- The offender was referred for assessment as to suitability for an Intensive Corrections Order
- The matter was listed for 31 August 2018
Key Takeaways
- The District Court confirmed that a sentence other than fulltime custody for an offence carrying a standard non-parole period should be relatively rare, consistent with binding authority on section 54A of the Crimes (Sentencing Procedure) Act
- A section 11 adjournment may be granted to allow an offender to demonstrate rehabilitation, but the court described even that opportunity as "generous" in the context of a serious home invasion with a standard non-parole period of five years
- Intoxication carried no mitigating weight where the offender had a prior history of alcohol-fuelled violence, and where legislation expressly directs that self-induced intoxication is not a mitigating factor
- Voluntary engagement with anger management counselling, sustained employment, and clean drug testing results were accepted as evidence of rehabilitation, contributing to the decision to pursue an ICO assessment rather than impose immediate fulltime imprisonment
- Compliance with bail conditions attached to a section 11 adjournment is taken seriously: the court noted the failure to formally produce urinalysis results as required, though it ultimately accepted the substance of the evidence through the pre-sentence report
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW): section 11 (adjournment for rehabilitation), section 54A (standard non-parole periods)
Cases:
No cases were cited in the judgment text or metadata.