R v Lutze

[2020] ACTSC 121

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Lutze

Citation:

[2020] ACTSC 121

Hearing Date:

31 January 2020

DecisionDate:

12 February 2020

Before:

Burns J

Decision:

See [20]–[23]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trial by judge alone – one count of aggravated robbery by joint commission – one count of aggravated burglary by joint commission – consideration of personal deterrence – reasonable prospects for rehabilitation

Legislation Cited:

Criminal Code 2002 (ACT) ss 310, 312, 45A

Cases Cited:

R v Lau; R v Lutze [2019] ACTSC 353

Parties:

The Queen (Crown)

Simon Lutze (Offender)

Representation:

Counsel

P Dixon (31 January 2020); M Lucero (12 February 2020) (Crown)

J Sabharwal (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Sharman Robertson (Offender)

File Number:

SCC 91 of 2019

BURNS J:

1. Simon Lutze, on 12 December 2019 you were found guilty by myself, after a trial by judge alone, of two offences. The first offence is an offence of aggravated burglary by joint commission (CC 2019/3427), contrary to s 312 of the Criminal Code 2002 (ACT) (the Criminal Code), by virtue of s 45A of the Criminal Code. That offence carries a maximum penalty of 20 years’ imprisonment, a fine not exceeding $320,000, or both.

1. The second offence was one of aggravated robbery by joint commission

   
   

   (CC 2019/3876), contrary to s 310 of the Criminal Code by virtue of

   
   

   s 45A of the Criminal Code, which carries a maximum penalty of

   
   

   25 years’ imprisonment, a fine not exceeding $400,000, or both. 

The facts

1. My findings of fact are set out in my reasons of 12 December 2019, finding the offences proved: R v Lau; R v Lutze [2019] ACTSC 353.

1. In summary, I am satisfied that on 15 December 2018, you and your co-offender, William Lau, entered residential premises in Dunlop, ACT, as trespasses with the joint intention of stealing property from the premises. This aggravated burglary occurred at about 1:30 pm, at a time when there were two people inside the premises. You were subsequently confronted by one of the occupants of the premises. I will turn to what occurred in those circumstances shortly.

1. I see no reason to distinguish between you and your co-offender with regard to your individual involvement in the offence of aggravated burglary. I accept that the offence was opportunistic and not subject to any real planning or premeditation. I assess this as being in the lower range of such offences.

1. Turning to the offence of aggravated robbery, I note that the weapon employed was a screwdriver, sharpened so as to effectively be a spike. It is a weapon capable of causing serious and perhaps, potentially lethal, injury. It is not, however, as obviously lethal a weapon as, for example, a loaded firearm or a sharp knife.  

1. You were the person who first produced the screwdriver. It was used to intimidate the victim into letting you leave the premises with the stolen property and to intimidate him into not pursuing a request for help from a passer-by. It was you who threatened the victim with the screwdriver. I would assess this as being towards the mid-range of such offences.

Subjective features

1. You have a criminal history, but it is not particularly significant. I am satisfied that your prior history is not such as to disentitle you from any leniency in sentencing for the present offences.

1. You are 32 years old and you were 30 years old at the time of these offences. A

   
   

   Pre-Sentence Report prepared for the sentence hearing states that you have been supervised on community-based orders in the past, principally for traffic offences. Your compliance with community-based orders was described as unsatisfactory. You have been subject to disciplinary action in the Alexander Maconochie Centre (AMC) since you were remanded on 16 December 2018.

1. You reported a positive and supportive upbringing. You have three siblings. Your parents separated when you were six years old, and you resided between your mother’s and father's residence after that time.

1. You began engaging in antisocial behaviour at age 17 years, and you were shortly thereafter told to leave your family home. You no longer have any contact with your father. You had regular contact with your mother and siblings within the community, but not so much since you have been in custody. You plan to reside with your mother when released from custody until you can obtain and ACT Housing property. Your mother is willing to support you, saying that she will not tolerate antisocial behaviour if you reside with her. It is a significant matter supporting your prospects for rehabilitation that you have ongoing family support. 

1. You completed up to Year 10 in formal education, and then left school to work in labouring. You have subsequently completed some employment courses. You have obtained sporadic employment until about four years ago. Since that time, you have been mostly unemployed. The author of the Pre-Sentence Report notes that your ability to obtain labouring work has been detrimentally affected by your lack of a

   
   

   driver's license and also a hand injury that you sustained in a motor vehicle accident when you were 19 years old.  

1. You reported commencing alcohol use at age nine years. You were drinking to severe intoxication by age 18 years. You have attempted rehabilitation in the past, but unsuccessfully. At the time of these offences, you were consuming six to ten alcoholic drinks daily.

1. You commenced using cannabis when you were 12 years old, and you were using sporadically prior to these offences. You commenced using methamphetamine approximately 10 years ago. You stated that you were using one to three points every four or five days prior to these offences. You attribute your use of this substance to an undiagnosed condition of Attention-Deficit Hyperactivity Disorder (ADHD). You said that it helps you to focus.

1. You have a history of mental health issues, including hospitalisation. No formal diagnosis has been made, but you stated to the author of the Report that you experience symptoms of ADHD, depression and anxiety.  

1. I take into account two letters that were written by your mother. She believes that your alcohol and drug use have been self-medicated for undiagnosed mental health conditions. I give considerable weight to her opinions on the basis that she has considerably more experience with you over a longer period of time than the other people who have provided material with regard to sentencing. You have indicated to her, whilst in the AMC, a willingness to receive treatment for mental health issues. You have also expressed remorse to her for these offences. Your mother also provides useful information concerning traumatic events in your life and how they have affected you. She describes these offences as being uncharacteristic.  

Consideration

1. You did not enter pleas of guilty to the present charges and you maintained pleas of not guilty throughout the court proceedings. That, of course, was your right, but it does mean that you are not entitled to any discount on sentencing that would have been shown to you, had you entered pleas of guilty.

1. I am satisfied that you have reasonable prospects for rehabilitation if you address mental health issues and drug and alcohol abuse. That, of course, will not be an easy task. Offences of aggravated burglary and aggravated robbery always call for sentences which are designed to deter others from committing similar offences. I am not satisfied that in the particular circumstances of this case, that any strong personal deterrent element is required in sentencing.  

1. Having given consideration to all available sentencing options, I am satisfied that sentences of full-time imprisonment are the only available options that will appropriately address the appropriate sentencing considerations. I take into account the principles of totality in determining the extent of the accumulation of the sentences which I will impose.  

Sentence

1. With regard to the offence of aggravated robbery (CC 2019/3876), you are convicted and sentenced to three years’ imprisonment, commencing on 15 December 2018 and expiring on 14 December 2021.

1. With respect to the offence of aggravated burglary (CC 2019/3427), you are convicted and sentenced to two years’ imprisonment, commencing on 15 December 2020 and expiring on 14 December 2022.

1. The aggregate sentence is therefore one of four years’ imprisonment, commencing on 15 December 2018, and expiring on 14 December 2022. 

1. I set a non-parole period of two years, commencing on 15 December 2018 and expiring on 14 December 2020.  

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

Date: