R v Gotte [2018] ACTSC 219

Crimes (Sentencing) Act 2005 (ACT) s 29(1)(b)

R v Billington [2014] ACTSC 350

R v Twerd [2018] ACTSC 153

Legal Aid ACT (Offender)

SCC 312 of 2017; SCC 313 of 2017

1. On 9 November 2017, the offender pleaded guilty to two offences:

(a) Attempted aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT) by virtue of s 44 of Criminal Code 2002 (ACT); and

(b) Minor theft, contrary to s 321 of the Criminal Code 2002 (ACT).

2. The maximum penalty for the offence of aggravated robbery is 25 years' imprisonment and/or a fine of $375,000. The maximum penalty for the offence of theft is six months' imprisonment and/or a fine of $7,500.

3. I observe at the outset that the length of the maximum term of imprisonment for the robbery offence is an indication of the seriousness with which the community regards offences of this type.

4. In addition I have had regard to cases like R v Twerd [2018] ACTSC 153 and R v Billington [2014] ACTSC 350 as indicating the very stern attitude that must be taken to these offences. Of course each case is to be decided on its own facts. Nevertheless, the above cases provide useful guidance.

5. The pleas of guilty were not entered at the earliest opportunity but, nevertheless, have significant utilitarian value, particularly in relation to the robbery charge. The offender is entitled to a discount arising from the plea, which I assess at 20%.

6. The offender was born in 1985. He is now 32 years of age. He was raised in Canberra and is the eldest of four children. He did not have a particularly close relationship with his parents. They divorced when he was eight years old. He was cared for by his mother until the age of 16.

7. The offender completed Year 12. He suffers from dyslexia. He does not have a good employment history, probably due to his mental health issues. He is in a de facto relationship which is apparently supportive. Unfortunately, a number of the relationships he has been involved in have not been successful. He was married at a young age and soon became heavily involved with drugs and alcohol.

8. There are two children of the relationship which ended unhappily after eight years. These two children are now cared for by the offender. One of them has significant behavioural problems which require a good deal of extra care. The imprisonment of the offender would mean this child would need to be looked after by his mother who is probably ill-equipped to do so.

9. In addition to his own children there are two other children in the household. They are the children of his partner. He is not their principal carer but does provide support to them. I am satisfied that imprisonment would impose a substantial hardship on this family and in particular on the offender's own two children.

10. A Court Alcohol and Drug Assessment Service (CADAS) Report was prepared earlier this year to investigate the offender's drug and alcohol history and condition. He told the authors of the report that:

...his offending behaviour was a demonstration of his inability to cope and exasperation, thinking his actions would separate him from his children and then he could complete suicide.

This regrettably misguided thought pattern is consistent with his psychological assessment.

11. The authors of the report were sufficiently concerned to refer the offender to further assistance. The report states:

Given his risk of misadventure through self-mutilation and ongoing intermittent suicidality, CADAS referred Mr Gotte to a counsellor within ADS counselling and Treatment Service... with a view to possibly participating in ADS Dialectical Behaviour Therapy group.

12. The offender attended the group and has continued to do so.

13. The offender clearly has mental health issues which have impacted his capacity to live a normal life. The stress of raising two children has also weighed heavily upon him. He has been assessed as probably suffering from a borderline personality disorder. He seems to be in remission from an alcohol abuse disorder. The offender also suffers from depression, which may be a part of the personality disorder. According to the psychological report, which forms part of Exhibit 1:

Mr Gotte's ability to exercise appropriate judgment, ability to think clearly and experience general disinhibition appears to have been affected by his alcohol abuse. The author notes that Mr Gotte appeared to have some insight into the potential affect alcohol has had on his levels of impulsivity. It appears that his thoughts of suicide may have also had a disinhibiting effect on his behaviour.

14. The above passage is important to bear in mind when considering the facts of the offending.

15. The offender does not have a criminal record besides a driving offence. For present purposes, this record is not relevant.

16. On 6 October 2017, the offender entered a bank. He placed a stolen backpack (the subject of the theft charge) on the counter and handed the bank teller a note which said the backpack contained a bomb and he should be given cash.

17. The bank teller pushed a panic button. The offender ran away. A police bomb response team was called. The shopping centre containing the bank was evacuated and the backpack was examined. It contained no more than a plastic money box.

18. The following day the offender went to the Belconnen Police Station. He told the police that he had been at the bank the previous day and told them, correctly, that he had done "something stupid". He was arrested. He said in his oral evidence before me that one of the matters that had influenced him was the damage that he might have done to the employees at the bank. He referred to the Victim Impact Statement that had been read on behalf of the principal teller involved.

19. I am satisfied that the offender felt remorse very soon after the attempted robbery and that he has continued to feel remorse until the present time.

20. The other side of the story, however, is what is contained in the Victim Impact Statement which is an almost classic rendition of what one might expect from a person who has been subjected to a threat as potentially destructive as that made by this offender. In this case a young mother was subjected to extreme terror. I have no doubt the experience will remain with her for many years to come, if not for life. The victim and the public are entitled to assume that persons who carry out attempted bank robberies, no matter what the motivation and no matter how amateurish the attempt, should be properly punished.

21. It was conceded on behalf of the offender that a term of imprisonment is an inevitable consequence. However, it was submitted that an appropriate punishment would be for that imprisonment to be served by way of an Intensive Corrections Order.

22. Any sentencing exercise involves looking at the objects and principles of sentencing as set out in the Crimes (Sentencing) Act 2005 (ACT).

23. The offender is effectively a person without any criminal record. His history has to a large extent been dictated by mental health issues and he probably suffers from a definable psychiatric disorder. He did not try to rob the bank to obtain money. He did it for uncertain reasons but which must be seen to include a desperation to rise above the stress that he was suffering or perhaps to bring upon himself some form of destruction. This is consistent with him handing himself in the next day, although as I have also already said, this action was consistent with his remorse and recognition of the stupidity of his conduct.

24. The offender's otherwise good character has been reinforced by the references that have been tendered on his behalf.

25. When the matter came before me on 18 May 2018, I thought an Intensive Correction Order should be considered and referred the offender for assessment. I did not think any sentence of imprisonment would exceed four years.

26. An Intensive Correction Order Report was prepared, dated 13 August 2018. It assesses the offender as suitable for the order. Some inconsistencies arising from histories given by the offender have been pointed out by the Crown. I am satisfied they have been adequately explained.

27. In particular the Crown pointed out that the reference to the Marymead Centre could not have been correct because this centre caters only for children. The offender gave further testimony and said the reference was a mistake. His children had been to the centre but he had attended Catholic Care for cognitive behaviour therapy. I am satisfied from the entries on his mobile telephone that he was telling the truth.

28. Normally, full time imprisonment would follow without hesitation. However, I think the offender's circumstances create an exceptional case justifying the imposition of an Intensive Correction Order.

29. This sentence should not be taken as any form of norm for this type of case.

30. The assessment report recommends certain conditions which I will adopt.

31. I think the appropriate term of imprisonment for the offence is 3 years and 6 months which I will reduce to 33 months and 15 days after the discount for the guilty plea.

32. In order not to offend the provisions of s 29(1)(b) of the Crimes (Sentencing) Act 2005 (ACT), I will attribute the 20 days the offender has spent in custody to the theft charge.

(a) In respect of the offence of attempted aggravated robbery using force (CC 2017/11078), the offender is sentenced to 33 months and 15 days' imprisonment commencing on 15 August 2018 and ending on 1 June 2021.

(b) In respect of the offence of minor theft (CC 2017/11530), the offender is sentenced to 20 days' imprisonment commencing on 7 October 2017 and ending on 27 October 2017.

(c) The term of imprisonment in respect of the attempted aggravated robbery using force is to be served by way of an Intensive Corrections Order including the core conditions and further conditions that the offender is to abstain from the consumption of alcohol and that he report forthwith to ACT Corrective Services.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Elkaim.