procedural. The offender was sentenced to 120 days' imprisonment, with 141 days presentence detention recognised. Application for $200 compensation order refused.
Key principles
The offence of aggravated burglary, while carrying a maximum penalty of 25 years' imprisonment, was at the lower end of the scale of seriousness (para 6).
The offending occurred in a boarding house context involving individuals in 'straightened circumstances' and 'desperation', with an altercation at 3am involving mutual antagonism...
The victim had armed himself with a large knife, provoked the offender, and stabbed him; the offender's conduct was responsive to provocation (paras 5-6).
The offender's guilty plea was entered at a reasonably early opportunity, providing utilitarian benefit and indicating some degree of remorse (para 2).
Issues before the court
What is the appropriate sentence for an aggravated burglary at the lower end of the scale, committed in circumstances of mutual antagonism and...
Should a compensation order be made for property damage to a door broken during the commission of the offence?
Plain English Summary
Raymond Gottschalk was sentenced for aggravated burglary after breaking into another resident's room in a boarding house during a 3am altercation. The court found the offence at the lower end of seriousness because the victim had provoked him, armed himself with a knife, and stabbed him. Gottschalk received 120 days' imprisonment, less than the 141 days he had already spent in custody, meaning he would be released immediately. The court refused to order him to pay $200 compensation for door damage, finding the victim did not deserve compensation given his aggressive conduct.
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Catchwords
Legislation Cited:
Judgment (1 paragraphs)
[1]
Raymond Gottschalk, you have pleaded guilty to one charge of aggravated burglary. That crime carries a maximum penalty of 25 years' imprisonment.
Cited legislation
No linked legislation citations have been extracted yet.
You 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.
We 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.
It 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.
In 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.
But 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.
You 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.
You 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.
Accordingly, 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.
You 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.
As 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.
Accordingly - sorry, yes, the disposal is made and handed down -
MR MOORE: A compensation order for $200.
HIS HONOUR: What is that for?
MR MOORE: The door.
HIS HONOUR: It was not his door.
MR MOORE: When he shouldered the door
HIS HONOUR: Yes, but whose door is it?
MR MOORE: I assume of the partner.
HIS HONOUR: Why should he pay the
MR MOORE: It is a discretionary application.
HIS 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.
All 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?
MR KELLY: Yes, Your Honour.
HIS HONOUR: They are not always this easy, Mr Kelly. I assure you.
MR KELLY: I look forward to it.
HIS HONOUR: All right. Thank you, gentlemen, and thank you, Mr Moore
MR MOORE: Thank you.
HIS HONOUR: and your extremely confident instructor for this very well-conducted and profitable
MR MOORE: And we would like to congratulate your associate and wish her well in the future. We understand will be seeing her a lot.
HIS HONOUR: Well, I just hope she ends her tour of the OPP known as the "nolle queen".
Parties
Applicant/Plaintiff:
DPP
Respondent/Defendant:
Gottschalk [2018] VCC 1144
AI Analysis
Outcomeprocedural
Disposition:
The offender was sentenced to 120 days' imprisonment, with 141 days presentence detention recognised. Application for $200 compensation order refused.