Director of Public Prosecutions v Gottsche

[2019] VCC 499

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01509

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAYMOND GOTTSCHE

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2018
DATE OF SENTENCE:	9 April 2019
CASE MAY BE CITED AS:	DPP v Gottsche
MEDIUM NEUTRAL CITATION:	[2019] VCC 499

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Office of Public Prosecutions
For the Accused	Mr T Gyorffy Q.C.	Galbally Rolfe

HIS HONOUR:

1Raymond Gottsche, you have pleaded guilty to one charge of aggravated burglary, one charge of criminal damage and one charge of intentionally cause injury.  The maximum penalties for these offences are as follows: aggravated burglary, 25 years imprisonment, criminal damage, ten years' imprisonment or 1200 penalty units, intentionally cause injury, ten years' important or 1200 penalty units.

2The offending can be briefly summarised. You and the victim were in a relationship from late 2010 to October 2013.  The relationship ended due to your drinking and unpredictability and the police applied for a family violence intervention order on the victim's behalf.  A 12 month order was made on
22 October 2013.  After the order expired you and the victim commenced a friendship where you would occasionally visit her if she needed help with something, this included mowing her lawn.

3On the morning of 13 November 2016 you telephoned the victim and asked her to come over to your house.  She refused.  At about 1.30 pm you called her a further two or three times.  She did not take your calls.  At approximate 6.30 pm that evening the victim was home with her 18 year old daughter.  Her daughter was closing the curtains when she saw you climbing over the front fence. 
The victim saw you and could tell that you were drunk.  She told her daughter to call the police and went outside as she did not want you coming into the house.  The victim asked you to leave.

4You then pushed her and shoved her four or five times.  You repeatedly said that you wanted your lawnmower.  The victim again asked you to leave and she told you that the police were on their way.  You went down the side of the house to get your lawnmower, which you thought was in the shed and you discovered the shed was padlocked.  You urinated on the side fence and returned to the front of the house where you threw various items around the veranda.  You then forced the front door and broke the door frame.  It is this behaviour that is the subject of Charge 2 on the indictment.

5You entered the house and demanded your lawnmower.  You stated, "I'm going to burn your camper down and you're not going anywhere".  You then punched the victim to the mouth.  She immediately fell to her knees, felt pain and was bleeding from the left side of her bottom lip.  This offending is the subject of Charge 3 on the indictment. 

6The victim's daughter came out of her bedroom and yelled at you to stop and leave her mother alone.  You stated that if she gave you a cigarette you would leave.  She walked out of the house hoping you would follow.  You briefly did.  However you then returned to the house, grabbed the victim by both hands and said, "I'm going to break your fucking hands so you can't go to fucking work". 
This occurred just inside the doorway of the house and is the offending that is the subject of Charge 1 on the indictment.

7You twisted and squeezed the victim's hands as you held them.  The victim ended up on the ground in the doorway where you started kicking her to the left hand side of her body and said, "I'm going to fucking kill you.  I fucking hate you".  The victim was so petrified, she wet herself.  You kicked her a number of times, screamed at her and pulled her hair. 

8As a consequence of these assaults the victim sustained the following physical injuries: a cut to her bottom lip, abrasions to her left hand and one of her fingers, and bruising to her arms and body.

9Police arrived while you were assaulting the victim and they were compelled to use capsicum spray to subdue you.  When you were taken back to the police station you were still agitated and displaying signs of intoxication.  You were deemed to be unfit for interview.  At 8.20 pm you were served by police with a family violence safety notice prohibiting you from having any communication with the victim or her daughter.  Later that night you were released into the care of your mother.  On 6 December you were interviewed and made a partial no comment interview. 

10Mr Gottsche, this is nasty, violent offending.  You were drunk and belligerent.  You damaged the frame of the victim's front door and after entering the victim's house you threatened her before punching her to the mouth with your right fist.  That was a brutal act.

11The victim's daughter intervened to help her mother and lure you out of the house.  You returned to the doorway and again assaulted the victim. 
You concede by your plea that the assault took place within her house.  You twisted and squeezed her hands and when she went to the ground you repeatedly threatened, punched and kicked her.  The victim was petrified.  The attack was persistent, cowardly and savage.  It is only through good fortune that the victim did not suffer more serious physical injuries.

12I have been provided with victim impact statements from the primary victim and from her daughter.  The statements detail the profound impact your offending has had upon their lives.  They were forced to go into emergency accommodation for two weeks and surrender the care of their animals.  Because they felt unsafe in Healesville, where they lived for ten years, they relocated to another area with all the emotional turmoil and expense associated with such a move.  Both victims are undergoing counselling to deal with the emotional and psychological impact arising out of your offending.

13As the prosecutor has correctly stated, general deterrence and denunciation are important sentencing considerations in this case.  You have two fairly recent and relevant prior convictions in the Magistrates' Court.  In 2011 you were fined $3000 for an offence of recklessly cause serious injury and in May 2014 you were fined $600 for offences of criminal damage and contravening a family violence safety notice.  This means that specific deterrence has a role to play in sentencing. 

14I now move to matters relevant to your background and those matters raised in mitigation.  You are a 48 year old Taungurung man.  Your mother is a Taungurung woman and you remain close to her.  You are estranged from your father.  You have four younger brothers.  You were born and raised in Healesville and you have lived in that area for your entire life. 

15You told Mr David Ball, a forensic psychologist who assessed you in July 2018 that your family life was mostly functional and cohesive.  You attended Lilydale Technical School until Year 12.  Whilst there was some relatively minor offending when you were a young man you were, in fact, a law abiding citizen until the offence that was dealt with at the Ringwood Court in 2011.  The offence at that time and the subsequent matters have all involved the abuse of alcohol.  This has been a significant problem for you over the past few years.

16You have a very solid work history.  This is very much to your credit. 
You worked for many years for a Mr Frank McKay, initially at his produce farm and for the last 20 years or thereabouts for his turf drainage business.  In a reference presented to the court he described you as a reliable and valuable employee.  Mr McKay is currently battling cancer and because he is unable to work, you and two other employees have assumed the responsibility of running the business.  You fear that if you were gaoled the business may not survive.

17You have strong support in your local community.  Many character references were tendered that testify to your strong work ethic, your honesty and generosity and your kind-heartedness.  Auntie Joy Murphy, a senior elder of the Wurundjeri people attended court and spoke on your behalf.  She said you were respectful, caring and kind and very hardworking.  A work colleague,
Mr Nicholas Murphy, noted that you were upset, embarrassed and distressed by your behaviour towards your former partner.  Mr Ball also notes in his report that you were very sorry and embarrassed by your behaviour.

18The most significant issue to emerge from Mr Ball's report was your
self-reporting of dangerous patterns of alcohol consumption over an extended period of time.  This history led Mr Ball to express the opinion that you have suffered from a severe alcohol use disorder that is now currently in remission.  Your counsel said that your prior court appearances occurred within the context of alcohol abuse and I accept that that is probably true. 

19The evidence in relation to your current offending confirms that you were heavily intoxicated at the time. This does not, of course, excuse in any way your offending.  However it does offer an explanation as to why a hardworking man in his 40's and generally of good character becomes involved, at a relatively late age, in a series of violent offences.

20Your plea of guilt is a relevant matter for me to take into account.  The credit that attaches to the plea must be measured against the following matters. 
First, the plea was not an early plea of guilty.  Secondly, witnesses including the victims were required to give evidence at the committal. However on this point, your counsel noted that the committal was of very limited scope and simply clarified a number of ambiguities in witnesses' statements.

21Notwithstanding the two caveats that I have just identified you are to be given credit for your plea of guilty.  It has saved the victim and her daughter from the trauma of giving any further evidence and saved the community the cost and expense associated with a criminal trial.  It also shows a willingness to accept responsibility for the offending. 

22However I am also satisfied that your plea is not indicative of deep remorse or of significant victim empathy.  For some inexplicable reason you seem to believe your behaviour, while serious, could not have been as bad as has been alleged.  Whilst you have expressed regret and remorse to Mr Ball and to various friends you told the workers from the Office of Corrections, who have prepared a pre-sentence report at my request, that the events were over exaggerated and some, "a load of rubbish".  You expressed these beliefs even though you admit you were grossly affected by alcohol at the time you offended and therefore could not have any clear recollection of what you had done.  Mr Gottsche, it is time for you to accept the full extent of your criminal behaviour and to stop suggesting that the extent of the offending has been exaggerated in some way.

23Your counsel submitted that it is significant that since the commission of these offences, you have taken steps to address your alcohol use and its associated violence.  I agree that your positive progress is an important matter to take into account.  On 1 March 2017 you were accepted into the Men's Behaviour Change program run by Anglicare in Lilydale.  Your completion of that program was confirmed by a report detailing your attendance at the required 20 sessions between 8 March 2017 and 21 September 2017. 

24I note the program was built around two unanswerable propositions.  Namely that women and children have a right to live freely and safely and men who use violence need to take responsibility for their behaviour.  Whilst it was entirely appropriate for you to undertake such a program it is concerning that upon completing it, you were still unable to accept the full extent of the allegations made against you.

25I am satisfied that your participation in the behaviour change program was instrumental in your decision to dramatically reduce your alcohol intake.  That decision was further reinforced by your participation in alcohol counselling at Inspiro Community Health in Healesville between 31 January 2019 and
26 March 2019. 

26A report from that organisation states that over the two month period you managed to decrease your already reduced alcohol intake from four standard drinks three times a week to one to two standard drinks over the same period.  The pre-sentence report dated 19 March 2019 from the Office of Corrections provides confirmation of your current modest drinking patterns.  Given your past history in relation to alcohol abuse and offending this development is a very positive one. 

27It is important for me to note that you have consented to having these charges heard in the Koori Court.  In doing so you agreed to participate in a process that involved appearing before elders from the Koori community.  The process is described as a sentencing conversation.  It was apparent to me from the way you participated in that conversation, that you do have insight into the seriousness of your offending if not its full extent.

28You do have good insight into the destructive influence of alcohol in your life. 
I give you credit for your active participation in the Koori court process. 
The Court of Appeal has recognised that the sentencing conversation in the Koori court is designed to further the reformation of an aboriginal offender.  Participation in the process is not easy.  Indeed, it is challenging and your participation in the process is a factor that is relevant to sentencing.

29Mr Gottsche, this is not an easy matter to determine.  The offending is serious and you have relevant prior convictions.  I am mindful of the need to impose orders that appropriately denounce your criminal behaviour and at the same time deter others from acting in the way that you did.  Just punishment is also a relevant sentencing consideration. 

30However I have been persuaded by your counsel's submissions that notwithstanding the serious nature of your offending the various purposes of sentencing can be appropriately addressed in this case by the imposition of a community corrections order rather than a sentence of imprisonment. 
The following matters have persuaded me to this view. 

31First, while the offending is clearly serious, the offence of aggravated burglary is at a relatively low level compared to other offences of this type.  Secondly and fortuitously, the physical injuries to the victim were not serious or lasting injuries.  Thirdly, you have pleaded guilty to the charges.  Finally, and most significantly of all, nearly 29 months has elapsed since the commission of these offences and in that time you have made important changes to your life that provide grounds for optimism about your future.

32As I have already said, in March 2017 you voluntarily enrolled in and completed a men's behaviour change program and since that time you have dramatically reduced your alcohol consumption.  You have also engaged in alcohol counselling.  You understand that your relationship with the victim is over and there has been no further offending against her. 

33Importantly, you have a solid work history and you are currently supporting your employer while he copes with the burden of his illness.  You are well regarded in your community and you have support from your mother, three of your brothers and other members of the community.  Given these matters I have concluded that your rehabilitation is well advanced and that there is no benefit to the community in disrupting that positive progress.

34The purposes of sentencing concerned with deterrence, denunciation and just punishment can, in this case, be addressed by a community corrections order with appropriate conditions.  I note that the Court of Appeal has recognised that in certain cases the various purposes of sentencing may be adequately addressed by a community corrections order even though the offending is classified as relatively serious.  Will you stand, please?

35Mr Gottsche, you are convicted on all of the charges and released on a community corrections order.  The order will run for a period of two and a half years and will have the following special conditions.

36You are to be under supervision for the period of the order.  You are to perform 350 hours of community work.  You are to undergo treatment and rehabilitation as directed for alcohol abuse and you are to undertake programs to reduce
re-offending.

37Even though you have completed a men's behaviour change program, I am of the view that it is important that you undertake another such suitable program so that you fully understand the consequences of your behaviour.

38I direct that up to 50 hours of the attendances on programs may be counted towards your community work.  You are to report to the Office of Corrections at 2.00 pm within two working days.  Had you pleaded not guilty and then found guilty after trial I would have sentenced you to total effective sentence of nine months' imprisonment together with a 21 month community corrections order.

39Pursuant to s.464ZF of the Crimes Act I order that you undergo a forensic procedure for the taking of a scraping from your mouth. If you fail to cooperate in the taking of the sample the authorities will take a blood sample and may use reasonable force to obtain it. I make the order because of the seriousness of the offending, your prior convictions, the order is in the public interest and the making of the order is not opposed. For the purposes of complying with this order you will be required to report to the police at Healesville within the next eight weeks. Do you understand what has happened?

40OFFENDER:  Yes, Your Honour.

41HIS HONOUR:  So you are going to be released on a community corrections order for the next two and a half years.  It is a standard condition of that order that you cannot commit any further offences. 

42OFFENDER:  I understand, Your Honour.

43HIS HONOUR:  You must fully comply with the order and all its conditions.  Just take a seat there for the moment.  Are there any other matters,
Mr Malobabic ‑ ‑ ‑ 

44MS MALOBABIC:  No, Your Honour.

45HIS HONOUR:  ‑ ‑ ‑ or Mr Gyorffy?

46MR GYORFFY:  No, Your Honour.

47HIS HONOUR:  Yes, thank you. Adjourn the court.