R v Dotta
[2021] ACTSC 150
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Dotta |
Citation: | [2021] ACTSC 150 |
Hearing Date: | 21 July 2021 |
DecisionDate: | 21 July 2021 |
Before: | Burns J |
Decision: | See [19]–[21] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining property by deception – plea of guilty – weight to be given to general deterrence in this type of offending – where offending conduct able to return significant financial advantage – R v Watson [2020] ACTSC 30 distinguished – where offender repaid amount obtained plus interest to victims – consideration of offences where deception carried out by builder on a homeowner where significant amount of money obtained from homeowner – whether sentence of full-time imprisonment required |
Legislation Cited: | Criminal Code 2002 (ACT) s 332 |
Cases Cited: | R v Watson [2020] ACTSC 30 |
Parties: | The Queen ( Crown) Clinton Peter Beaumont Dotta ( Offender) |
Representation: | Counsel E Wren ( Crown) J Sabharwal ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Tim Sharman Solicitors ( Offender) | |
File Number: | SCC 122 of 2021 |
BURNS J:
Clinton Dotta, you have entered a plea of guilty to one charge alleging that between 24 January 2016 and 9 August 2016, you by deception dishonestly obtained a financial advantage from another individual, to whom I will refer as the victim (CC 2021/514). The maximum penalty for the offence of obtaining a financial advantage by deception, contrary to s 332 of the Criminal Code 2002 (ACT), is 10 years' imprisonment, a fine of 1,000 penalty units, or both.
I note with regard to your pleas of guilty that on 26 August 2020 you entered a plea of not guilty to a charge of using a false document, in the ACT Magistrates Court. On 27 January 2021, a further charge of obtaining property by deception was laid against you. Between January and May 2021, negotiations took place between your lawyers and the prosecution's lawyers.
On 17 May 2021 you entered a plea of guilty to the matter now before the Court. Your plea of guilty did not come at the earliest opportunity, but nevertheless it is a plea which I am satisfied had significant utilitarian value. It relieved the prosecution of the necessity to conduct a criminal trial, and to call witnesses in order to prove its case. I propose to reduce by approximately 20 per cent the sentence which I would otherwise have imposed, in order to reflect your plea of guilty.
The facts
Turning to the facts, I note that a comprehensive Statement of Facts has been tendered. I will not now recite that comprehensive Statement of Facts. It is sufficient to summarise the facts by stating that at the relevant time, you were the director of a building company. The victims in this matter contracted with you for you to complete renovations on their home. You provided the victims with some documents for the purposes of that renovation, including a Building Commencement Notice and ACT Planning and Land Authority approved architectural drawings. These documents were not genuine.
The Crown case against you, which you have admitted, is that you dishonestly obtained a financial advantage namely, money paid to you by the victims, by deception by providing them with false documents indicating that their renovations had the relevant approvals to commence.
The sum of money that you obtained was some $60,494. As I indicated in argument with counsel, whilst I note that the contract for the total renovations was for a significantly larger sum, I do not take that into account in determining the objective seriousness of this offence. In my opinion, to do so would be speculative, because it would involve speculating as to whether you would continue with your deception.
In assessing the objective seriousness of the present offence, I take into account that it was premeditated and involved a degree of sophistication. I also, as I have indicated, take into account that the deception was one which was able to return a significant financial advantage to you. I do accept that you have repaid the amount that you obtained from the victims, together with interest, such that I am satisfied that the victims are not out of pocket with regard to your offence. I am satisfied that that is a mitigatory matter.
Subjective features
I take into account the contents of the Pre-Sentence Report which has been placed before me. You are currently 34 years old. You apparently have no alcohol or drug issues that need to be addressed. You have a 4 year old son from a previous relationship, which has broken down, and regrettably it appears that there is a less than amicable relationship between yourself and your former partner, such that you currently have no contact with your son.
You presently live alone in rented accommodation. You were bankrupted in November 2017. I am told, and this has not been disputed by the Crown, that the bankruptcy was not a result of the present offending, but was in fact due to taxation debts which you owed at that time. You were discharged from bankruptcy on 8 March 2021, this year. As I had previously noted, there is evidence before me that you made the final payments with respect to the amounts owing to the victims in March this year.
I was informed by Mr Sabharwal that you no longer hold a builder's license, and that you have no intention of ever owning your own business again, particularly in relation to building. As such, it is unlikely that you will re-offend in the same way. I am satisfied that you are remorseful with respect to this offence.
I note the opinion of the author of the Pre-Sentence Report that you appear to have enjoyed a prosocial upbringing, and that you continue to have positive relations with your parents and your sisters. You are currently employed on a full-time basis.
You were assessed as a low risk of general re-offending. It appears to me that specific deterrence as a sentencing consideration does not loom large in the present proceedings.
I accept the proposition that general deterrence is a very significant sentencing consideration with respect to this type of offending. As such, it is important that I impose a sentence which will bring home to others who may be minded to offend in a similar way that their offending will have real consequences. Balanced against that is the fact that I am satisfied that you are remorseful for this offence, and I am also satisfied that it is unlikely that you will re-offend.
Consideration
My attention was drawn to my decision in the matter of R v Watson [2020] ACTSC 30 (Watson). There are similarities between the facts involved in that matter and the present charge. However, there are also very significant differences.
The offender in Watson engaged in a lengthy process of deception in relation to numerous victims, involving very significant amounts of money. He did not enter a plea of guilty to the charges against him until partway through his second trial, and even then, only in circumstances where I had indicated that I would direct the jury that the defence which had been outlined by his Counsel in his Counsel's opening was not viable. The plea of guilty entered by the offender in Watson therefore had very limited utilitarian value, and in addition, did not reveal any remorse on his behalf. Indeed, he went so far as to appeal, and ultimately argue in the Court of Appeal, that I had been wrong to say that I would direct the jury in the way in which I indicated I was going to. I am satisfied that this case differs very significantly from that in the matter of Watson.
Nevertheless, I think that what I said in the matter of Watson does have some application to the present proceedings in that I am satisfied that offences of this nature, particularly with regard to a deception carried out by a builder on a homeowner, which has the effect of obtaining a significant amount of money from the homeowner, calls for the imposition of a term of imprisonment as an indication of the seriousness of the offence and the seriousness with which the community regards that type of offending.
The question in your particular case is whether it should be a sentence involving some element of full-time imprisonment; or whether, as has been submitted by Mr Sabharwal, a suspended sentence with a community order, will be sufficient.
I am satisfied, bearing in mind the matters to which I have referred, that a sentence of imprisonment which is suspended and with a community service order, will be sufficient to satisfy the requirements of sentencing.
Sentence
You are convicted of the offence (CC 2021/514), and you will be sentenced to 12 months' imprisonment, which I have reduced from 15 months in order to reflect your plea of guilty. That sentence will commence today, 21 July 2021, and expire on 20 July 2022.
The sentence will be wholly suspended, and there will be a Good Behaviour Order for a period of 12 months from today, 21 July 2021, with a condition that you are to accept the supervision of the Director General responsible for adult corrections or that person's delegate, for that period of 12 months, or such lesser period as deemed appropriate by your supervising officer. You are also to accept all reasonable directions of your supervising officer.
In addition, you are to complete 200 hours of community service within that period of 12 months, as directed by an authorised officer. You are to report within 48 hours to ACT Corrective Services to facilitate the commencement of these orders.
[Speaking directly to offender]
Mr Dotta, I have imposed a conviction and sentenced you to 12 months' imprisonment. I have, however, suspended that with a Good Behaviour Order for a period of 12 months. You will be required to accept supervision by Corrective Services, and to obey directions given to you by your supervising officer for that period of 12 months. In addition, you will be required to complete 200 hours of community service within that period. Now, of course, if you comply with those orders, then at the end of that 12 month period, the matter will have been concluded and you will not be required to serve any period of full-time imprisonment. But if you breach those orders then you may be brought back before the Court, at which time you may be required to serve a period of full-time imprisonment.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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