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District Court 9 March 2020

R v Rudolph

[2020] NSWDC 137

Assault & violenceTheft & propertyDomestic & family violencePublic order & justice offences

Citation: R v Rudolph [2020] NSWDC 137
Court: District Court of NSW
Date: 9 March 2020
Judge: DCJ Priestley SC

Background

The offender appeared for sentencing on two principal charges arising from events on 1 and 2 November 2018 in Coffs Harbour. He was in a relationship with one victim and was the adult son of another. All parties had gathered in the area to attend a family reunion. Three additional offences, including common assault, stalking and intimidation, and larceny, were placed on a Form 1 to be taken into account when sentencing for the primary offence.

The offending unfolded across two days. On the first day, the offender grabbed his partner's mobile phone in a tussle and punched his elderly father, knocking him to the ground. On the following morning he returned in a crude disguise, kicked in a door, and later that afternoon broke into the same unit a second time carrying a small paring knife and approached his partner before being confronted by the occupants and leaving.

At the time of the offending, the offender was serving a section 12 suspended sentence bond imposed in 2017 for prior domestic violence offences involving a different former partner. The question of whether that bond should be revoked formed a separate but related issue before the court.

  • What was the objective seriousness of the principal offence (aggravated break and enter under s 113(2) of the Crimes Act 1900) and the stalking and intimidation charge under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007?
  • How should the Form 1 offences (common assault, a further stalking and intimidation charge, and larceny) influence sentencing for the principal offence?
  • Should the existing section 12 bond be revoked given the breach constituted by the new offending?
  • Whether an Intensive Correction Order (ICO) was an appropriate sentencing disposition, having regard to the offender's personal circumstances, rehabilitation, and the interests of the community.

Decision

DCJ Priestley assessed all of the offending as falling at the low end of objective seriousness. The aggravated break and enter, while involving a weapon and a forced entry, was described as thoroughly disorganised, brief in duration, and driven more by frustration than criminal intent. The stalking and intimidation offence, involving a kicked door and a damaged lock, was also characterised as unsophisticated and likely to result in detection. The threats made to the female victim, including a threat to kill, were treated as more serious in nature given the language used, though the incident itself was short-lived.

On the Form 1 procedure, the court applied the principle from Attorney General's Application No. 1 of 2002 that the focus must remain on the principal offence, while permitting greater weight to personal deterrence and retribution than would otherwise apply. The larceny was treated as very minor. The assault on the offender's father, while serious enough to warrant attention, occurred in circumstances where the father had intervened in a domestic dispute.

Regarding the prior bond, the court found the breach could not be described as trivial, involving drug use and five separate offences. The court revoked the bond, applying the reasoning in DPP (NSW) v Cooke and related authorities that revocation is the appropriate response where no good reason exists to excuse non-compliance. The remaining term of the revoked bond was imposed as an ICO running concurrently with the sentence for the principal offence, giving a total term of imprisonment of 35 months.

The court declined to impose a full custodial sentence, instead ordering that the 12-month sentence for the principal offence be served by way of an ICO. This reflected the offender's rehabilitation efforts since the offending, the time already spent in custody (approximately three months), and a finding that community-based supervision better served both the offender and the public than continued incarceration.

Orders Made

  • The offender was convicted on the s 13(1) stalking and intimidation charge and the s 113(2) aggravated break and enter charge.
  • The existing section 12 bond was revoked; a concurrent ICO of 23 months was imposed from 9 March 2020 with standard conditions.
  • For the s 13(1) offence: a Community Correction Order (CCO) of 6 months, commencing 9 March 2020, with standard conditions.
  • For the s 113(2) offence (taking into account Form 1 matters): 12 months' imprisonment to be served by way of an ICO, commencing 9 March 2020, with conditions including:
  • No offending
  • Supervision by Community Corrections
  • No consumption or possession of illicit drugs
  • Residence within 100 km of Newcastle NSW
  • No contact, stalking, intimidation, harassment or approach of his father or his former partner
  • No non-parole period was set, in accordance with s 45 of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • The Form 1 procedure does not allow subsidiary offences to drive the sentencing exercise. As affirmed in Attorney General's Application No. 1 of 2002, the focus remains on the principal offence, though the Form 1 matters permit greater weight to be given to personal deterrence and retribution than might otherwise apply.
  • A breach of a section 12 bond will ordinarily result in revocation unless the offender can demonstrate good reason to excuse the non-compliance. Drug use and five offences committed during the bond period did not meet that threshold.
  • Where a sentence of 12 months or less is imposed as an ICO, s 45 of the Crimes (Sentencing Procedure) Act 1999 precludes the court from setting a non-parole period.
  • Objective seriousness can be assessed as low even where aggravating features such as a weapon and a forced entry are present, if the overall circumstances suggest disorganisation, brief duration, and limited planning.
  • Concurrent orders across a revoked bond ICO and a fresh sentence ICO are permissible under s 68(3) of the Crimes (Sentencing Procedure) Act 1999, provided the combined total term is within the permitted limits.

Legislation and Cases Referenced

Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes Act 1900 (NSW), ss 61, 113(2), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(5AA), 45, 68(3), 98(3), 166
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Attorney General's Application under s 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
- R v Ponfield (1999) 48 NSWLR 327