R v Rudolph

District Court of NSW|2020-02-17|Before: Spigelman CJ

Judgment

Martin Roy Rudolph ("the offender") appears for sentence on two charges. One is a breach of section 13 (1) of the Crimes (Domestic and Personal Violence) Act 2007 which has a maximum penalty of five years and no standard non-parole period. The other is a breach of section 113 (2) of the Crimes Act of aggravated break and enter with intent, with the matter of aggravation being in possession of a small knife. That offence has a maximum penalty of 14 years and no standard non-parole period.
In addition there are matters to be taken into account on a form 1 pursuant to section 166 of the Criminal Procedure Act. There are three such matters being the offences of common assault (section 61, maximum penalty of 2 years), a further offence of stalk/intimidate (section 13 (1)) and a charge of larceny (section 117, maximum penalty 5 years). These matters are to be taken into account when sentencing for the section 113 offence.
In regards to the form 1 procedure it is important that the focus remains on the principle offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community's entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney Generals Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

Subjective matters

The offender pleaded guilty in the Local Court and was committed for sentence, and I will allow for a 25% discount on sentence as a result.
The offender relied on a psychological report of Dr Rebecca Smith dated 6 December 2019 and a letter from Connect Global Limited dated 12 February 2020. The offender also gave evidence.
In his evidence the offender stated that he realised that he was acting in a jealous rage at the time of the offending. He said he was truly sorry and would himself have been scared had he been in the position of the victims. He said he was in a bad place and in what I found compelling evidence stated that the weekend had brought up issues with his father. Those issues included that his father had been a perpetrator of domestic violence both physical against the offender's mother and according to the offender also sexually against his mother which he could remember from the age of eight or nine. The offender said that when he turned 18 he and his brother moved their mother out of the house and warned their father off. On the offender's evidence his father was sleeping with NH on the weekend the offending occurred. My view is this gives some context to the overall circumstances of this offending. I take these matters into account.
The offender described "Connect Global" as something of his salvation. This is apparently an organisation with a religious base and the offender stated that he had now "given my life to the Lord". With the greatest respect to all involved hearing about people being converted to a life of faith on the road to the sentencing hearing is something that is difficult to view without some degree of circumspection. A large part of the offender's subjective case was that he has been able to see the error of his ways and has undergone alcohol rehabilitation and education through Connect Global. Putting aside the faith-based aspect of that program the evidence is that he has taken part in the program over a 10 month period and recently had to move out to make space for another resident, the point being that he has completed the course. The offender wishes to remain involved either with that program or its associated activities and has been and wishes to continue to be active in community projects. His plan is to live in the Newcastle area to facilitate this which has the added benefit of being a fair remove from the Coffs Harbour area where he has family connections and where the trouble has been with these offences. One exception to that is that he presently lives with an aunt at Corindi Beach where he will continue to live pending finding accommodation in the Newcastle area. In his evidence he said that his aunt was a Christian woman and gave the clear impression that her home was free of the temptations of drugs and alcohol.
The fact that the offender has undertaken a 10 month course of drug and alcohol rehabilitation clearly supports his case of good prospects of rehabilitation, and also supports his assertions that he is remorseful. It gives a basis for finding as I do that his prospects of reoffending are less now than they were at the time of the offending though the strength of addiction to drugs such as ice and the possibility of relapse cannot be totally discounted and will need to be constantly guarded against by the offender. This continuing need to aid rehabilitation is a strong factor in favour of utilising the ICO procedure, and I note the judgment of Basten JA in R v Fangaloka [2019] NSWCCA 173 in this regard.
The offender also swore that the history he gave to Dr Smith was true. The offender gave Dr Smith a background of a "nightmare" upbringing with a racist and very violent father who he was scared of. The offender first took speed at the age of 13 or 14 when helping his father, a musician, playing in nightclubs.
The offender managed to complete his High School Certificate and later gained a certificate 4 in Transport and Logistics and worked in warehousing. It was in his mid-20s that he was introduced to ice whilst doing night shifts which led to a lost relationship and a lost job and problems with the drug ever since. Whilst not working since entering rehab 10 months ago he is hopeful that he will find work now. Unlike many who are sometimes seen in this situation he does have a work history to fall back on. My view is the greater the likelihood of finding work the greater the likelihood of a successful rehabilitation.
It is a concern that five years ago the offender became abstinent for a six-month period and then reunited with his daughter's mother only to start using drugs again after meeting a dealer without any apparent other trigger. It was at the end of this period that the current offences occurred and this period including living on the streets.
Dr Smith considered the offender to be sincere. She considered him stable at the present time. She considered him to be now confident and optimistic with a clear sense of purpose.
The view I formed of the offender is consistent with those expressed by Dr Smith. In short he does appear to be motivated to remain on the path of rehabilitation.
I have noted above the offenders plea of guilty and take that into account. There is no dispute that he should benefit by the 25% discount for the utilitarian value of that plea.
I largely accept the submissions made on behalf of the offender some of which have already been noted and including his early plea, the low level of planning, the short duration of the offending when the individual offences are looked at, the background to the offending involving intense personal relationships and the personal background of the offender.
Adverse to the offender is a criminal history which disentitled him to leniency. It is of concern that history includes earlier occasions of assault. That said there is some cause for optimism in that the offending started at the age of 21 in 1998 but that between the period 2003 to 2017 the only offending was a PCA in the high range in 2009, a possess drug charge in 2004 (where a $150 fine was imposed) and some stealing matters in 2012. It was submitted that apart from the offending occurring whilst on conditional liberty there was an absence of Ponfield factors; it is arguable that there is another factor such as the offence occurring when the offender knew the premises would be occupied but largely I find that the submission is well made.
The plan of the offender is should he remain in the community to maintain his rehabilitation efforts, to hopefully reconnect with his 14-year-old daughter, to contribute to the community and obtain employment.
The offender has spent two months and 24 days in custody since his arrest for this offending.

Sentencing options

The seriousness of the section 113 offence all but dictates that the section 5 threshold is crossed. So much was conceded by the offender. That said whilst the Crown agreed with that view the Crown did not wish to be heard to argue against proceeding by way of an ICO.
After some deliberation I consider that the common ground of the parties is the correct way to proceed. A reservation I had was not as to whether an ICO should be imposed but whether the matter in all the circumstances passed the section 5 threshold. The commonly used expression "section 5 threshold" is in my view an unhelpful shorthand term. The words of section 5 are that "a court must not sentence an offender to imprisonment unless it is satisfied having considered all possible alternatives that no penalty other than imprisonment is appropriate". It is not a presence of a threshold that needs to be crossed, it is an absence of any other appropriate route that is needed. The circumstances of this case are of a 41 year old man with a toxic relationship with his father discovering on a weekend away for the purpose of a family reunion that his 67 year old father is sleeping with his girlfriend. His behaviour thereafter is totally unacceptable and whilst it constitutes the offence of break and enter into a home for the purpose of committing serious indictable offence, it can equally be characterised as somebody acting out of a sense of anguish borne of severe abandonment and betrayal. The facts fairly state the offender took 3 steps into the premises, indicative in my view of the minor nature of the s113 charge.
In order to adopt this course I need to consider the charges separately, and when considering the s113 charge, I need to take into account the form 1 matters in the way referred to above.
It is also necessary to take into account section 4A and 4B of the Crimes (Sentencing Procedure) Act given the domestic violence nature of this offending. Section 4A can be satisfied by a supervision order. Section 4B prevents the making of an ICO unless the sentencing court is satisfied that the victims of the offending and anyone with whom they are likely to reside will be adequately protected whether by the conditions of the intensive correction order or for some other reason. It was agreed between the parties that the father and former girlfriend now live in Queensland. Presumably RS remained in Coffs Harbour; no evidence suggests otherwise. I am satisfied that the safety of these victims is adequately protected for a number of reasons. Firstly in respect of RS because his involvement was incidental to the fact that the other two victims were located where he was. Secondly in respect to all three of the victims the offender intends to reside in the Newcastle area well away from the known residences of the victims. Thirdly because I accept the case put for the offender as to his continuing rehabilitation which when taken with the fact that I consider his drug use a major contributor to his offending (but which I have not taken into account in mitigation of sentence) means the likelihood of such offending occurring is progressively lessening. Fourthly any ICO imposed will have a condition that the offender not reside more than 100 km north of the city of Newcastle which would place him well south of Coffs Harbour and obviously well south of Queensland.
In respect of the stalk/intimidation offence I am not satisfied that that is a matter where no other sentence than one of imprisonment is appropriate. As noted above it was brief and consists of one offensive remark addressed to his father in emotionally strained circumstances against the history of a strained relationship in any event. I propose proceeding by way of a community correction order on that count. Given that the community correction order will necessarily commence from the date of the order and given the 10 month period already spent in rehabilitation and given also that it will be concurrent with the ICO I propose it be for a six-month period with the standard conditions.
In respect of the section 113 offence I need to bear in mind and take into account the matters set out in the form one. But for that it would have been a very close consideration as to whether a custodial sentence was necessary. Even then I would note that the larceny charge of stealing the ex-girlfriend's mobile phone would not call for a term of imprisonment. The other two matters however on the form 1 go hand-in-hand with the very type of offending being carried out by the aggravated break and enter with intent. My view is that, after allowing for the 25% discount for the early guilty plea, the appropriate sentence is 12 months. In all the circumstances and not least because of the 10 month period of rehabilitation already undertaken, and the need to continue to promote and assist in the rehabilitation, I consider that an ICO is appropriate. The characteristics of this offender since his offending persuade me that it is in the better interests of the community that he not be incarcerated and I note in any event he has spent almost 3 months incarcerated since the offending. I will therefore impose an ICO for that 12 month period. Given the imposition of an ICO and in accordance with section 45 CSPA I decline to set a non-parole period.
There is therefore a total term of imprisonment of 35 months, so that the proposed orders are permitted by section 68(3).
It was not submitted by either the accused or the Crown that the ICO's should not be concurrent. I consider this appropriate, given that the s12 bond of 23 months had one month remaining at the time of the most recent offending.

Orders

Martin Roy Rudolph, in respect of the matters being sequence 4 and sequence 11 of the matters charged you are convicted.
The section 12 bond is revoked and I impose an ICO for a term of 23 months to date from today, 9 March 2020 with the standard conditions.
In respect of the sequence 4 matter being the section 13 (1) Crimes (Domestic and Personal Violence) Act matter I impose a community correction order with the following terms: 1. the CCO will commence today 9 March 2020. 2. The CCO is for a term of six months. 3. The CCO will have the standard conditions that you not commit any offence and that you appear before the court if called on to do so at any time during the term of the CCO.
In respect of the s113(2) Crimes Act offence of aggravated break and enter with intent and taking into account the matters on the Form 1, I sentence you to a term of 12 months imprisonment to be served by way of an intensive correction order on the following terms: 1. the ICO will commence today, 9 March 2020. 2. It will be for a term of 12 months. 3. You must not commit any offence and that you must submit to supervision by a community corrections order. 4. You must not consume or possess illicit drugs. 5. You must reside within 100 km of the city of Newcastle New South Wales. 6. You must not stalk, intimidate, harass or approach either physically or by any other means of communication your father Mason Rudolph or NH.

Amendments 24 April 2020 - * Correction of spelling at 2

Removal of name from Judgment. 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 April 2020

At a glance

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Judgment (6 paragraphs)

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Cases Cited (4)