R v Rudolph [2020] NSWDC 137

District Court New South Wales

Medium Neutral Citation: R v Rudolph [2020] NSWDC 137 Hearing dates: 17 February 2020 Date of orders: 09 March 2020 Decision date: 09 March 2020 Jurisdiction: Criminal Before: DCJ Priestley SC Decision: See [46 – 49] Catchwords: CRIME — Violent offences — Common assault CRIME — Violent offences — Stalking or intimidation CRIME — Property offences — Larceny CRIME — Property offences — Break, enter and commit serious indictable offence — Circumstances of aggravation Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Cases Cited: Attorney Generals Application under section 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 in this regard. R v Ponfield [1999] 48 NSWLR 327 Category: Sentence Parties: Regina (Crown) Martin Rudolph (Accused) Representation: Crown: Stephenson for the DPP Counsel for the Offender: Mr Hussey for the Offender File Number(s): 2017/0016494

Judgment 1. 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. 2. 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. 3. 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.