Director of Public Prosecutions v Gottschalk

[2018] VCC 1144

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-01155

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAYMOND GOTTSCHALK

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	26 July 2018
CASE MAY BE CITED AS:	DPP v Gottschalk
MEDIUM NEUTRAL CITATION:	[2018] VCC 1144

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr A. Moore
For the Accused	Mr S. Kelly

HIS HONOUR:

1Raymond Gottschalk, you have pleaded guilty to one charge of aggravated burglary.  That crime carries a maximum penalty of 25 years' imprisonment.

2You have pleaded guilty at a reasonably early opportunity and I take that into account in terms of the utilitarian benefit of that plea of guilty as well as it indicating a degree at least of remorse and as the learner prosecutor has pointed out, it would have been an extremely interesting trial.

3We have now had the opportunity of watching a DVD of what occurred outside the room and accordingly, I do not think I need to describe the offending in any great detail.

4It took place in a boarding house, obviously everybody in fairly straightened circumstances and at 3 o'clock in the morning. I do not know who had been taking what or who has been drinking what but an altercation occurred.  You were banging on the door of another resident and essentially yelling at each other.  It is a bit hard to know quite why you were there and the man inside had the same view.

5In any event, he armed himself.  He then, as I have heard watching and listening to the video, kept throwing insults at you and basically as I said in contractual law terms offering an invitation to treat.  Unfortunately, you accepted that invitation to treat and he treated you with a stab wound with a very large knife.  I then have viewed the two of you wrestling outside and his very self-satisfied approach to life after he stabbed you.

6But in any event, the Crown opening has been tendered and anyone who wants to read it can.  This is at the lower end and has occurred in a milieu of pretty much desperation I suspect from the pair of you.  How he escaped any sort of charge I have got no idea bearing in mind what he was doing afterwards with the knife and threatening you with it while you were on the ground but that is the way it had all panned out.

7You do have a criminal history.  You have been, as I understand it, locked up before.  You are awaiting a hearing in the Magistrates' Court on various matters pertaining to intervention orders.  You have now been on remand for all these matters, I am informed, for 141 days.

8You are to be brought back before the Magistrates' Court in about a week's time and I think that the submission of counsel that pretty much time served is enough.  I think that is right.

9Accordingly, it would be futile for me to be trying to deal with your personal circumstances.  I will let the magistrate worry about that in a week's time.  I think the appropriate sentence is one of imprisonment but there has to be a way which does not indicate that this the worst case of aggravated burglary of all time.

10You have got 141 days presentence detention.  I will sentence you to 120 days and that leaves a bit of time - I believe about a month or so to work with or for your counsel to negotiate with the magistrate downstairs.  I do not know about the detail of those matters but it is really going to be a question for a magistrate.

11As I understand it, you are already on a community corrections order which I am assuming has been suspended during the course of this incarceration and I am content to - when you have competed my sentence which you would have today, that you will be released into a community corrections order and it seems no point in me buy into that sort of disposition at this point in time.

12Accordingly - sorry, yes, the disposal is made and handed down -

13MR MOORE:  A compensation order for $200.

14HIS HONOUR:  What is that for?

15MR MOORE:  The door.

16HIS HONOUR:  It was not his door.

17MR MOORE:  When he shouldered the door ‑ ‑ ‑

18HIS HONOUR:  Yes, but whose door is it?

19MR MOORE:  I assume of the partner.

20HIS HONOUR:  Why should he pay the ‑ ‑ ‑

21MR MOORE:  It is a discretionary application.

22HIS HONOUR:  Yes but there is orders for the victim.  No, I am not going - no way is that bloke getting 200 bucks for this.  I will exercise my discretion and will respectfully decline if that is all right, Mr Moore.

23All right.  6AAA too is it not?  Six months, summary charge, seven days concurrent.  PSD 120 days.  There is nothing else I need to do, is there?

24MR KELLY:  Yes, Your Honour.

25HIS HONOUR:  They are not always this easy, Mr Kelly.  I assure you.

26MR KELLY:  I look forward to it.

27HIS HONOUR:  All right.  Thank you, gentlemen, and thank you, Mr Moore

28MR MOORE:  Thank you.

29HIS HONOUR:  ‑ ‑ ‑ and your extremely confident instructor for this very well-conducted and profitable ‑ ‑ ‑

30MR MOORE:  And we would like to congratulate your associate and wish her well in the future.  We understand will be seeing her a lot.

31HIS HONOUR:  Well, I just hope she ends her tour of the OPP known as the "nolle queen".

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