R v Cruise

FACTS

1. Turning to factual matters. The facts in relation to count 1 are agreed and are set out in a document which was signed by the offender on 14 February 2022. Those facts are as follows;
2. On 14 January 2019, the victim and the offender were inmates in block G2 at Shortland Correctional Centre. At the relevant time, the victim was in cell 40 and the offender was in cell 8. At around midday on 14 January 2019, the victim returned to his cell. The offender was in the cell and the victim said "What's the problem mate?" As the victim approached the offender the offender punched the victim to the face. As a result of the punch, the victim had a split lip and a red mark to his cheek. The offender told the victim the assault was because of a recent conversation in which the victim said something about being Muslim. The offender told the victim to clean himself up and not report the incident to correctional staff saying "You've learned your lesson." The victim reported the assault to police on 5 February 2019 in the context of reporting another matter.
3. The facts of the count 2 offence are found in the evidence called at the offender's trial, which I relevantly referred to in my verdict and reasons delivered on 25 March 2022. In determining the facts for sentence, I must be satisfied beyond reasonable doubt of any matters that are adverse to the offender, whereas matters in mitigation need be established only on the balance of probabilities. I find the following facts for the purposes of sentencing on count 2.
4. As already noted, the victim and the offender were at the relevant time inmates at the Shortland Correctional Centre. On 23 January 2019, the victim was called to his cell by his cellmate Steve Gilbert for the purposes of having a "lozzie bong" which was an improvised device made with a bottle and a metal stem in order to smoke lozenges containing nicotine. When the victim arrived in his cell, there were four others present, including the cellmate Steve Gilbert, the offender, and another male who the victim thought was named "Michael Rizla." After the victim entered the cell, the man referred to as "Rizla" closed the door and the victim said words to the effect of "What's going on? Is everything alright?"
5. At that point, he was kicked from behind by "Rizla" which brought him to the ground. The offender then said something like "I heard you've been a bad, bad boy" after which the offender removed his penis from his pants and said "The only way you're leaving is if you suck my dick." When the victim refused, the offender slapped his penis against the victim's face, neck and under his chin, in an attempt to place his penis into the victim's mouth. At some stage, the offender was holding the victim by the hair and the offender's penis, which was not erect but either soft or semi-hard, also touched the victim on the lips. While this was happening, the victim was being slapped from behind by "Rizla" who was using a rubber thong while the victim was on his knees, with a knee in his back, presumably the knee of "Rizla" and with his head pulled backwards.
6. The incident came to an end when the victim's cellmate Steven Gilbert said something like "Enough is enough" and told the offender and "Rizla" to get out. The victim said that the whole incident occupied as much as five minutes. However, I conclude that it lasted at least a few minutes, given the various events that I have described. As a result of this attack, the victim was left with a number of injuries. These involved bruising in the form of red marks on his back and chest which were still visible three days later when the victim was spoken to by nurse Brooks and by Senior Constable Giuffre.

OBJECTIVE SERIOUSNESS

1. In determining the appropriate sentence, it is important that I make an assessment of the objective seriousness of each offence. Each of the offences must be regarded as of some seriousness given that they each carry a penalty of imprisonment and in the case of count 2, a maximum penalty of 20 years imprisonment. However, it is necessary that I make an assessment as to where on a theoretical scale of seriousness the particular examples of these offences that are before the Court lie.
2. The Count 1 offence involved a single punch which impacted with the victim's face, split his lip and left a red mark on his cheek. The assault which involved a single act was very brief and the injuries caused were relatively minor and apparently with no long-term effects. While the agreed facts are silent as to the precise reason for the assault, they indicate that the offender attended the victim's cell and immediately punched him.
3. I am satisfied beyond reasonable doubt that the offender intentionally entered the victim's cell for the purpose of assaulting him and that this arose from a prior disagreement involving a discussion about religion. Ultimately, I consider that the count 1 offence falls comfortably below the mid-range and towards the lower range, although not at the lowest range of objective seriousness.
4. Turning then to the count 2 offence. This is, as the Crown has submitted, a somewhat unusual example of this type of offence, given the factual findings that I made in my reasons for verdict. In this regard, I found at para 140 of my reasons that the offence involved "An act of violence or intimidation with an intention to dominate and humiliate the complainant rather than an intention to use the complainant as an object of sexual gratification." Nonetheless, and as is noted at para 143 of my reasons, I was satisfied beyond reasonable doubt that the offender committed the offence with the intention of causing his penis to enter the mouth of the complainant. I remain satisfied beyond reasonable doubt of that matter.
5. However, given my finding that the count 2 offence was primarily an act of humiliation and domination, I approach the offence on the basis that while the offender intended his penis to penetrate the complainant's mouth for at least a momentary period of time, I am not satisfied that his intention went further than that, nor that he intended the victim should suck his penis to the point of ejaculation. As already noted, the offence took place over a period of some minutes and was not merely fleeting, although I accept that the time period during which the offender's penis was in contact with or close to the victim's face was relatively short.
6. Physical injuries to the victim involved bruising and visible marks to his body which were inflicted by being hit by a rubber thong or thongs. The physical harm was therefore, not long lasting, and was towards the lower end of the scale of actual bodily harm.
7. The Crown argued that there was some degree of planning by reason of the offender having attended the victim's cell, pursuant to a joint criminal enterprise. I accept this to some extent but it seems to me that, as submitted on behalf of the offender, any planning was quite minimal. The offence is, however, aggravated by reason that it was committed in company with another unknown person which increased the coercive and violent force with which the victim was confronted. Having regard to these various matters, I assess the objective seriousness of the offence as being slightly below the mid-range but not towards the low range.
8. The Crown placed before the Court an impact statement from the victim but indicated that it did not rely on the contents of that Victim Impact Statement as aggravating either offence and did not suggest that I should find "substantial harm" based on its contents. Nonetheless, I have no doubt that the count 2 offence has had and will likely continue to have a real and adverse impact on the life of the victim. As the Courts of this country have in recent decades said repeatedly, sexual offences will usually if not almost invariably have significant and often long-term effects on victims. There is no reason to think that this case is any different, a conclusion which is confirmed by the victim's descriptions of the various lasting effects that he experiences. It was argued by the Crown that I would accept that offences of this kind committed in a prison environment are rarely reported and that the sentence needs to send a "strong message" which acknowledges the importance of general deterrence.
9. I accept that while it is likely correct that such offences are under-reported, that is not a matter about which I consider I need to make any determination. It suffices to say that I accept that deterrence, both personal and general, are of real importance in sentencing for any offence of a sexual nature and also in sentencing for offences committed within a corrective institution.

SUBJECTIVE MATTERS

1. I turn then to subjective matters relating to the offender. He is now 41 years of age. He has four children, arising from two different relationships, although none of his children live with him and it seems that he has only sporadic contact with them.
2. His criminal history is fairly extensive and commenced before he was 18. Leaving aside Children's Court matters, he has in his adult life appeared fairly regularly before courts for numerous offences, many of them involving violence, which has resulted in his serving numerous terms of imprisonment. While I do not treat his prior history as aggravating the offences before the Court, the history is such that clearly the offender is not entitled to the leniency that might have been given to him if he had no prior criminal history or only a limited one.
3. The offender's subjective case has been placed before the Court, primarily by means of the psychiatric and psychological reports prepared between November 2020 and May 2022. Those being the reports of Dr Samson Roberts of 30 November 2020, Dr Patricia Jungfer of 11 May 2021 and psychologist Dr Paul Pusey of 13 May 2022.
4. The offender spoke to each of the authors of the three reports about his claims that he was subject to incidents when in juvenile custody which involve allegations of sexual abuse. It is not necessary for me to set out the details of these allegations in these reasons. It is sufficient to state that the first incident involved an alleged indecent suggestion which he says was made to him by a female counsellor which involved no physical interaction and was, according to the offender, rebuffed by him. That alleged incident, if it happened, is not in my view, a matter of great significance.
5. The second alleged incident, however, is said to have involved a very serious sexual assault on the offender by two adult juvenile justice officers. An examination of the histories provided by the offender as set out in the three reports to which I have just referred indicates some problems with the reliability of his account. Specifically, there are a number of inconsistencies as to dates and events that raise concerns about the weight that can be attached to the material in those reports. Some of those inconsistencies are highlighted in the report of Dr Patricia Jungfer.
6. Given that the offender gave no evidence on sentence to confirm the truth of these self-reports to the psychiatrist and psychologist, I have approached the contents of those reports with some caution. Nonetheless, and as the Crown fairly conceded, there are a number of matters in those reports about which the offender has been consistent or largely consistent. One of those topics is his report of a disturbed childhood involving exposure to domestic violence at the hands of his father who he described as a violent alcoholic. This has been a consistent part of the offender's reported history and I therefore, accept that at least until he was about eight years old, when his father left the home, he was exposed to the type of conduct that he described.
7. The significance of this type of background has been considered in many cases in recent times. In Bugmy v R [2013] HCA 37, the Court said "Because the effects of profound childhood depravation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's background..."
8. On the other hand, and as stated in that case, the Court also needs to consider whether an offender's inability to control violent responses to frustration may increase the importance of protecting the community.
9. I do not consider that the evidence in this case supports a finding of "profound" childhood depravation. In reaching this conclusion, I have considered the nature of the childhood domestic situation described by the offender and that the exposure to his father's drinking and violence apparently ceased when the offender was around age eight. Nonetheless, the boundaries of the "Bugmy principle" are not clearly or definitively delimited: see Nasrallah v R [2021] NSWCCA 207.
10. I therefore take into account the offender's reported early childhood history as part of his background. I accept that to some degree, it diminishes his moral culpability by reason of his exposure to a poor role model at a young age and the likely disturbance in his maturation and development of acceptable norms of behaviour. However, on balance, I remain of the view that his moral culpability for the count 2 offence is moderately high, in that it did not involve a momentarily loss of control but was an intentional and mindful act of intimidation and humiliation of a victim who was smaller and more vulnerable.
11. The psychological and psychiatric reports also are not entirely consistent in their conclusions about the offender's mental state in relatively recent times. In particular, there is disagreement between Dr Samson Roberts and Dr Jungfer as to whether the offender has "Post-Traumatic Stress Disorder" or whether he has some or all of the symptoms of that disorder but not necessarily the disorder itself.
12. Nonetheless, there is agreement among the various experts that the offender does in fact experience mental health issues. Based on this material, and while on the evidence I am unable to determine the exact events which led to the offender developing them, I accept that the offender currently experiences the following conditions: a substance use disorder and anti-social personality disorder and symptoms of post-traumatic stress disorder.
13. It was argued on behalf of the offender, based on para 58 of the report of psychologist Dr Pusey, that there is some connection between the offender's mental health issues and his commission of the offences before the Court and that, in effect, his mental health resulted in his acting in a way that was beyond his control. Para 58 of Dr Pusey's report reads as follows; Mr Cruise's assertions made during his clinical interview in relation to his current offending suggests that he possesses a vulnerability to the overuse of over compensatory emotional and behavioural coping strategies in response to exposure to psychosocial stressors and negative mood states. This explanation provides at least a partial explanation with respect to his offending behaviour, in particular with respect to how his lack of engagement in treatment in relation to his psychopathology during the period of his offending may have increased the risk associated with his use of this behaviour and also may have contributed to the behavioural decision-making which has led to him being before the Court.
14. Having done my best to unravel what this paragraph actually means, I am not satisfied that the evidence of mental problems goes as far as has been submitted on the offender's behalf. As I have already noted, each of the offences were committed in a deliberate and essentially pre-meditated manner where the offender attended the cell of the victim in order to attack him. Having said that, I do accept the apparent suggestion by Dr Pusey that the untreated nature of the offender's mental condition may have contributed to poor decision-making which in turn led to the offences before the Court.
15. This, to my mind, reduces the offender's moral culpability to some degree, although in sentencing him, I balance this factor against my conclusion that the still untreated nature of the offender's mental conditions means that he presents an increased risk to the community. As I have already said, protection of the community against people who have difficulty controlling their behaviour is an important element in the sentencing exercise undertaken by any court and one to which I have had regard.

REHABILITATION AND REMORSE

1. I turn then to consider questions of remorse and prospects of rehabilitation. In relation to count 2, the offender continues to deny his guilt and there is therefore no evidence of remorse. As to count 1, the offender is entitled to the benefit of his having pleaded guilty to that offence. However, there is little that can be regarded as genuine remorse associated with that offence because the offender effectively maintained when speaking with Dr Pusey that the assault was justified and that he punched the victim who he described as "a gronk" because "he was using religion to score Bupe and I think that's wrong".
2. The material before the Court does not suggest that the offender's prospects of rehabilitation are good. While he told Dr Pusey that he would like to do treatment in the community, he has to date taken only minimal steps towards engaging in any treatment. This, combined with his history of offending and being subjected to a number of periods of imprisonment, lead me to the view that his prospects of remaining out of trouble upon his release are at best uncertain. In my view, that will depend largely on whether he can obtain employment, avoid excessive alcohol and other drug use, and engage in appropriate treatment. Whether he can do these things is as yet untested.

THE PANDEMIC

1. In sentencing the offender, I have had regard to the fact that his imprisonment will be during the currency of the pandemic with its inherent difficulties in institutions such as prisons and the frequent lockdowns and limitations on contact with family and friends that it has involved and may well continue to involve. I have also taken into account that the offender's mental health difficulties are likely to make his time in custody more onerous than if he did not have those conditions. I remain satisfied however, notwithstanding the offender's mental condition, that the sentence I impose must reflect the need for both personal and general deterrence.

DETERMINATION

1. I am satisfied that the s 5 threshold has been crossed in relation to both offences and that periods of full-time imprisonment are required. While the count 1 offence arguably might not have met that threshold standing alone, I am satisfied that in the overall sentencing exercise in which I will impose an aggregate sentence, it should attract a custodial term, see Behman v R [2014] NSWCCA 239.
2. I have had regard to the principles and purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 which I do not intend to cite.
3. I will make some adjustment by reason of the finding of special circumstances based on the offender's mental health issues and the need for him to be monitored and treated in the community on his release.
4. Given that there are two offences, I have had regard to principles of totality and the importance of imposing a sentence that appropriately reflects all of the purposes and needs of sentencing but which does not involve a crushing sentence. There is in my view, a need for some accumulation, some notional accumulation I should say, given that there were two separate acts separated by a period of some days against the same victim.
5. Given that I am intending to impose an aggregate sentence, it is necessary that I set out the indicative sentences for the two offences, if I was dealing with them individually.
6. Mr Cruise, the sentences I am about to mention are what I are called indicative sentences. They are not the actual sentence, that will be made clear in a few seconds. The indicative sentences are as follows.
7. For count 1, after taking into account the 5% discount for a plea of guilty, seven months imprisonment. For the count 2 offence, a period of imprisonment of three years nine months. In lieu of those indicative sentences, however, I impose an aggregate sentence of four years. I impose a non-parole period of two years nine months. Each of those, will date from 21 April 2022. The head sentence therefore, will expire on 20 April 2026. The non-parole period will expire on 20 January 2025.
8. Mr Crown, Mr Shukur, anything to raise at this stage?
9. SHUKUR: No your Honour.
10. YOUNG: No your Honour.
11. HIS HONOUR: Thank you. So Mr Cruise the non-parole period that I have imposed will expire on the date that I just mentioned which was 20 January 2025 and you will be eligible for release on that date subject to your conduct in custody. You understand?
12. OFFENDER: Yeah.
13. HIS HONOUR: Thank you. The Court will adjourn.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 October 2022