R v Lodge [2018] NSWDC 199

District Court New South Wales

Medium Neutral Citation: R v Lodge [2018] NSWDC 199 Hearing dates: 6 July 2018 Date of orders: 06 July 2018 Decision date: 06 July 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order Catchwords: CRIMINAL LAW – Sentence – At completion of s 11 bond - Aggravated break and enter and commit serious indictable offence – Home invasion – in company – Assault occasioning actual bodily harm. Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Christopher James Lodge Representation: Counsel: Mr B Costello – Crown Mr J Fitzgerald - Offender

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

Judgment 1. HIS HONOUR: When relationships break down there is often emotion involved and people sometimes react in a way that they might not have done had they been calm and detached. The offender Christopher Lodge, had a relationship which broke down. Unfortunately a combination of circumstances made it quite likely that he was going to commit the sort of offence he ultimately committed. Those two circumstances are first that he was drunk and secondly that at the time he was proud of his reputation for being as he described it, a "mad bluer", a person who had never lost a fight and needed to keep up his reputation. 2. He went to premises where his former partner lived. He said, "I just want my stuff". He was told that his stuff would be dropped off to him next morning and that his former partner was not going to open the door. Mr Lodge was not to be deterred from this sensible suggestion. In fact he broke into the house, smashing glass in the hallway as he did so. There was a child present in the house, he was screaming. The mother of the child Ms Fraser yelled out to the offender, "My son is here", but still the offender was not to be deterred. He flung open his former partner's bedroom door, walked inside and began to punch a man who was there. This man said, "Stop, what are you doing I've done nothing wrong", but the offender continued to punch him. The other female in the house, Ms Fraser, hid her young son in her bedroom and locked her bedroom door. 3. The offender's former partner ran to the back of the house to call police. Then another man turned up. He was a friend of Mr Lodge's and he too began attacking the unfortunate man who was the victim of Mr Lodge's violence Mr Harris. He kept saying, "Stop I don't want to fight", but he had two men on him who were intent on inflicting harm to him. The whole point of this was apparently revealed when the offender said, "You fucked me missus". Mr Harris replied, "I got all my clothes on what are you talking about mate?" Eventually after some considerable violence Mr Lodge told Mr Harris to "Get the fuck out now" and he left, followed by Mr Lodge and the other unknown male. 4. Police came in response to their call from the occupants of the house. They saw that the glass panel and the top half of the front door had been smashed and there was broken glass. They looked at Mr Harris and discovered that he had injuries. He had a cut to the bridge of his nose, a swollen left eye, swelling and bruising to his forehead, he as well as has cuts and bruises to both hands and a sore elbow. 5. The offender was arrested on 22 July 2016 and was rather unrepentant. One thing he did say was that he admitted to police that he knew that there was a young child in the house at the time he invaded it. 6. To say that this offence was a serious one is an understatement. The offender has pleaded guilty to an offence of aggravated break enter and commit serious indictable offence, the circumstances of aggravation being that he knew there were people inside. 7. But other circumstances of aggravation could have been relied on, he was after all in company. The serious indictable offence was assault occasioning actual bodily harm. The offence carries with it a standard non-parole period of five years and a maximum penalty of 20 years. I have taken into account both the standard non-parole period and the maximum penalty in determining the sentence to be imposed in this case. 8. I described the offence before as an invasion. It was in truth one of those offences that is often described as a home invasion. The offender broke into someone's home and assaulted a number of people, terrifying everyone inside. 9. Having re-read the papers for the purposes of today's proceeding I am somewhat surprised at myself in that I allowed Mr Lodge the opportunity of a s 11 remand. The Crown today described it as "generous", I think that is an accurate assessment. 10. The offender had a good upbringing, especially when his upbringing is compared to the upbringings of most offenders we see in Court. He has no real excuse for what he did. Certainly the fact that he was drunk was not a matter of mitigation, not only because legislation tells me that it is not, but also because the offender's criminal history included offences which arose from his regular use of alcohol and associated engagement in violence. 11. When Mr Lodge was last before me on 27 October last year there were suggestions that Mr Lodge may have changed his life for the better. Some people might have suggested that that had come too late for him to avoid fulltime gaol, but I did allow Mr Lodge the opportunity of demonstrating to me that he could turn his life around. I adjourned the matter to today under s 11 of the Crimes (Sentencing Procedure) Act. 12. One of the particular conditions of bail concerned a requirement that Mr Lodge undergo regular urinalysis in order to prove that he was, as he said he was, not using drugs. It was a condition too that he provide the results of all urinalysis tests to me today. That has not been done. However an updated pre-sentence report indicates that the authorities have seen eight clean urinalysis reports and they subjected him to seven saliva swabs, each of which proved negative. 13. I am prepared to proceed on the basis that Mr Lodge has not been using drugs despite his failure to strictly comply with the conditions of bail by providing me with all the results of urinalysis. The reason I am prepared to do that is this. If Mr Lodge is, despite what he tells me, still using drugs then that is going to be detected either in the assessment period which will follow the order I ultimately make, or during service of the sentence which I will ultimately impose and if he uses drugs he will go to gaol fulltime clearly. 14. Mr Lodge has now changed jobs. He was working in the timber industry before and he is now a truck driver's assistant in the scaffolding area. He works five days a week. He is no longer living with his parents and lives with a flatmate, being close to work. Without it being required of him by any bail order he has engaged with a psychologist to whom he speaks as part of an anger management counselling. He tells me he enjoys going. He also told me, through questions asked of him by Mr Fitzgerald that it came as something of a shock to him that he was at risk of going to gaol. 15. Mr Lodge I think might underestimate and perhaps even seriously under estimate just how serious his behaviour was. So let me make it clear to him. Motivated by jealously and a sense of entitlement he burst into someone's home and terrified the occupants there. He was with another man. He may be proud of the fact that he has never lost a fight, but given that there were two people there and Mr Harris was not really interested in fighting, he cannot even be proud of that in this circumstance. Then there was the presence of the child. Mr Lodge kept going despite being told very early on that the child was there and despite the child screaming. So Mr Lodge should be under no illusions about the seriousness of his conduct. 16. Then there is what parliament tells us. There is a standard non-parole period for this offence and the authorities which bind me tell me that a sentence of other than fulltime custody for an offence which carries with it a standard non-parole period should be relatively rare. So Mr Lodge should be under no illusions just how lucky he is at the order I am about to make. 17. I should have mentioned that Mr Lodge pleaded guilty at the earliest opportunity of course. I will not indicate a quantitative discount for that circumstance but I will say that the plea of guilty has been one of a number of factors that I have taken into account in deciding to impose a different form of sentence from that I might otherwise impose. 18. I am satisfied that a custodial sentence is required. I am satisfied that it is likely to be less than two years and there is at least the possibility of Mr Lodge serving his sentence by means of an Intensive Corrections Order. Accordingly I will refer him for assessment as to his suitability to serve a sentence in that way and list the matter on 31st August 2018. 19. Mr Lodge do you understand the expression 'you're not out of the woods'. You might still end up in fulltime gaol. If you fail a drug test and they do drug test you as the course of the assessment and you come back before me on 31 August you'll be going out that door behind you. That's where the cells are. If you don't continue to do well you will go to gaol. So it's important that you make sure that when you come back you're in the best position you can make yourself in, understand that?