R v Lodge [2017] NSWDC 319

District Court New South Wales

Medium Neutral Citation: R v Lodge [2017] NSWDC 319 Hearing dates: 27th October 2017 Date of orders: 27 October 2017 Decision date: 27 October 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Adjourned under s11 of the Crimes (Sentencing Procedure) Act Catchwords: CRIMINAL LAW – Sentence – Aggravated break, enter and commit serious indictable offence – In company – Assault occasioning actual bodily harm Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Christopher James Lodge Representation: Counsel: Mr J Fitzgerald - Offender

Solicitors: Director of Public Prosecutions – The Crown Legal Aid Commission – The offender File Number(s): 2016/221861

Judgment 1. HIS HONOUR: With what his barrister said was "refreshing honesty", the offender Christopher Lodge told a psychologist that at the time he committed the offence for which he must ultimately be sentenced, he had a bit of a reputation as a "mad bluer" and that he had never lost a fight. It is apparent that at the time the offence occurred Mr Lodge was somewhat proud of his reputation as an aggressive and violent person. When he was arrested for the offence I will soon describe, the police officer said to him that if he kept going the way he was going, he was "heading for gaol". The time for him to go to gaol may well have come earlier than the police officer realised. 2. The offender was in a relationship with a woman named JG. That was a brief relationship. It only existed for a period of six weeks. It terminated in part because the offender was jealous that was Ms G was seeing other people. At the time of the offence Ms G was living with another woman by the name of KF and Ms F's three-year-old son. The offender knew that these were the living arrangements. In particular, he knew that the three-year-old son was present at Ms G's home when, on 21 July 2016, he decided to visit, despite being clearly unwanted. There was also at that time a man by the name of JH, a friend of Ms G's, in the home watching television. 3. The offender knocked at the door. When he was asked what he was doing there, he said, "I just want my stuff." Ms G told him that she would drop his stuff off to him the next morning and that she was not opening the door. The offender was not to be deterred. He forced the leadlight panel out of the door, causing the glass to smash. He then entered. The offender was in company with another man who no-one recognised. Ms F said, "CJ, stop it, my son is in here." Her son was screaming. The offender apparently thought nothing of this because he continued on, preferring to keep his reputation as a violent thug rather than by doing what any decent person would do, which is to turn around and leave once the three-year-old child began screaming. 4. Although the offender said that he entered only to get his stuff, as soon as he saw Mr H he started punching him. Mr H, quite reasonably, said, "Stop. What are you doing? I've done nothing wrong", but the offender continued to hit Mr H, assisted by the other unknown male who had entered the premises with Mr Lodge. 5. The offender made his problems clear when he said to Mr H, "You fucked me missus." This was not a case where he wanted to get his clothes back. This was a case where he was angry because he perceived that Ms G had been unfaithful to him after a relationship existing for a mere six weeks. Mr H pointed out to the offender that he had all his clothes on and said, "What are you talking about, mate?" But he still kept fighting Mr H. Sensibly, Mr H said, "I'll get out. Just let me get my keys." 6. The offender left a short time later together with the other man there. Police had been called, of course, and they arrived soon afterwards. They saw damage to the front door, they saw damage to an interior timber door and they saw Mr H. He had a cut to the bridge of his nose, a swollen left eye and swelling and bruising to his forehead. He also sustained cuts and bruises to both his hands and he had a saw elbow. 7. The following day the offender went to police. He was arrested and entered into custody. He participated in an interview in which he admitted doing what he had done. He told police, "They just started being smart arses", and then said, "There was a bloke in the room and just - I don't know, I just - just - I snapped, yeah." He told police that he was aware that Ms F's young son was in the house. 8. He has now pleaded guilty at an early stage to an offence of aggravated break, enter and commit a serious indictable offence, the serious indictable offence being an offence of assault occasioning actual bodily harm. The circumstance of aggravation specified for the offence is that he knew there were people inside, but other circumstances of aggravation arise as well, in particular, that the offender was in company. 9. To say this is a serious offence is an understatement. This happened in the presence of a child. It happened in Ms G's home and, lest it be thought that I have double counted, not all break-enter offences involve a breaking and entry into someone's home. 10. Consistent with what the offender told police, he pleaded guilty at the earliest opportunity. The sentence I will ultimately impose upon him will be 25 per cent less to reflect that circumstance. 11. The offender had a good upbringing, especially when compared with the upbringings of most offenders who appear in this Court. His parents still support him despite the troubles he has clearly caused them. He also has the support of his sister, with whom he has been living until recently. He is now 26 years of age. He says that he has changed his life. A reference from his employer was tendered today, although I do note it makes no mention of any knowledge on the part of the employer of the offender's crimes, in particular, the crime for which he is appearing for sentence today. 12. He says that he is no longer using drugs and does not drink as much as he used to. I should point out that although the offender said he had eight beers on the night that he committed this offence, this is not a matter of mitigation at all, particularly in view of the offender's regular use of alcohol and engagement in violence in the period leading up to this offence. 13. The offender has a criminal history as well, including an offence of break and enter. He actually received a prison sentence for that offence, but on appeal that was reduced to a section 9 bond. He has committed a domestic violence type offence in the past and, of course, the Crown accurately points out that there is a domestic violence flavour of this offence as well. 14. Mr Fitzgerald, of course, impressed upon me that his client was a very different person to the man who committed the offence. That may or may not be true, but in any case it is a fundamental rule of sentencing that the sentence must reflect the objective gravity of an offender's conduct. This offence carries with it a standard non-parole period of five years and the authorities tell sentencing judges that sentences of other than full-time custody for offences containing a standard non-parole period should be rare. 15. If I were to sentence Mr Lodge today, I would send him to gaol without hesitation. I will, however, give him the opportunity of proving to me that he is in fact a very different person to the man who broke into the home and assaulted Mr H knowing that a three-year-old child was there. I will adjourn the matter under s 11 of the Crimes (Sentencing Procedure) Act. 16. There will be some conditions of bail which are designed to ensure that when the matter next comes back before me I will know as much as I can about Mr Lodge. It may still be the case that he goes to gaol, but at the very least his good behaviour in the remand period will reduce the time that he spends in custody. It may be, and I make no promises, that a form of sentence other than full-time custody is imposed. Much will depend on whether Mr Lodge does everything he can to prove that he is a reformed character. 17. I will list the matter on 6 July 2018. 18. In addition to his current bail conditions there are these conditions: he is to use no illegal drugs whatsoever; he is to be supervised by the Probation and Parole Service, (and I will order a pre-sentence report for the next occasion). 19. In order to ensure that he is complying with the first condition, that is, that he not use any illegal drugs, he is to undergo regular urinalysis. If the Probation and Parole Service do not arrange at least fortnightly testing, he is to arrange such testing at his own expense. I emphasise at least fortnightly. The results of all urinalysis tests are to be provided to the Court on the next occasion. In the event that he has clean urinalysis reports for some time and the finds the cost and frequency of testing prohibitive, he may approach the Court to seek a relaxation of the frequency of testing. 20. Now, Mr Lodge, I really would have no hesitation sending you to gaol today. I know you have heard me say that a few times, but your conduct was frankly disgraceful. It was particularly disgraceful because not only did you do it, but you continued with a screaming three-year-old child there. That says a lot about your character at the time and none of it good. What you have got to do is prove to me that you are a different person. 21. Let me see if I can put it this way. So serious was your offending that if you want to have a hope of avoiding going to gaol, you are going to have to get what I will call an A-grade pass. That means you are going to have to do everything that you can in the next eight or nine months; keep your job, do not use any drugs, prove to me that you spend your leisure hours in a productive way. They are the sorts of things that Mr Fitzgerald will no doubt discuss with you. If you do not get an A-grade pass, next time I see you, you will be going to gaol. Do you understand that? 22. OFFENDER: Yes. 23. HIS HONOUR: Thank you. You can leave the dock now, Mr Lodge. 24. ADJOURNED PART HEARD TO FRIDAY 6 JULY 2018 IN SYDNEY