R v Heitell [2010] ACTSC 167 (15 December 2010)

Last Updated: 9 March 2011

R v ROBERT HEITELL [2010] ACTSC 167 (15 December 2010)

EX TEMPORE JUDGMENT

No. SCC 298 of 2009

Judge: Teague AJ

Supreme Court of the ACT

Date: 15 December 2010

IN THE SUPREME COURT OF THE )

) No.SCC 298 of 2009

AUSTRALIAN CAPITAL TERRITORY )

R

v

ROBERT HEITELL

ORDER

Judge: Teague AJ

Date: 15 December 2010

Place: Canberra

THE COURT ORDERS THAT:

1. That a convicted be imposed for the offences of aggravated burglary and theft.

2. On the charge of theft, a fine of $200.00 be imposed but stayed for a period of three months.

3. On the charge of aggravated burglary, a suspended sentence of imprisonment for a term of three months be imposed which is to be suspended upon entering into a good behaviour order.

1. Robert Heitell, you have been found guilty by me of two offences arising out of events that occurred on 10 April 2009. It is appropriate that I set out both my reasons for finding you guilty of the two offences and not guilty of a third offence and for sentencing you as I propose to do.

2. You were charged with three offences. The first was of aggravated burglary arising from the entry into premises at 53 Frome Street, Griffith on 10 April 2009. The second was a theft arising from the removal of a DVD player from those premises. The third was an assault occasioning actual bodily harm the alleged victim being Nick Gerring.

3. I heard oral testimony from four witnesses. I will refer to three of the four only by their first names, namely Joanne, Andrew and Ray, you were the fourth. In assessing all the evidence I had regard to the statutory obligations imposed on me. I also had regard to the directions and considerations that were recently summarised in decisions of judges of this court in the matters of R v Mulcahy [2010] ACTSC 98 and R v Maconachie [2010] ACTSC 137. Those were drawn to my attention by your counsel, Mr Sabharwal.

4. By agreement I was able to treat as part of the evidence before me the statements of Joanne and Andrew and the transcripts of the police interviews of Andrew, Ray, Nick and yourself. The questioning of the four witnesses by both Mr Lawton for the prosecution and Mr Sabharwal was very focused. The focus was almost entirely on the events shortly after the arrival at the premises of you and Ray in a car driven by Andrew. The main differences in the evidence were linked to the issues of whether you entered the premises at all, whether you stole the DVD player and whether you assaulted Nick.

5. The evidence of Joanne and Andrew as to the taking of the DVD player from the premises, and as to the carrying of the DVD player to the car, was clear. Joanne had no doubt that the DVD player was taken by the man she spoke of as male two. Ray was clearly, in the circumstances, male one, the wielder of the blockbuster. Only you could have been male two, given the evidence of Joanne and Andrew.

6. Andrew was clear that you carried a DVD player and not a backpack out to his car. You claimed in your oral testimony that a backpack was the only thing that you carried back to the car. No other witness saw a backpack. You claim that you had the backpack outside the premises but did not enter was at odds with your answers to the police. At that time, you were emphatic when speaking to the police that you did not leave Andrew’s car at all. As to the matter of the backpack and where you were, I cannot accept your evidence.

7. On all the evidence, I was readily satisfied beyond reasonable doubt that you did enter the premises and that you stole the DVD player. On the other hand, the evidence before me came nowhere near satisfying me that you assaulted Nick Gerring. In the first place, the evidence of Nick and of Joanne was completely at odds with the account of Ray that you struck Nick almost immediately upon entering the premises. I do not accept the evidence of Ray on that issue.

8. Moreover, the answers Nick gave to questions by the police about how he came to have injuries to his face did not constitute an adequate basis for the drawing of an inference that you struck him at a later time.

9. The maximum penalties for the offences of aggravated burglary and theft are respectively 20 and 10 years imprisonment. Any offence of aggravated burglary associated with theft has to be viewed as quite serious. However, I allow in your favour for certain matters.

10. One is that you were not the leader but very much the follower. You were in the company of Ray when he chose to act extremely irrationally and violently. Further, the taking of the DVD player appears to have been more of a spontaneous act than a premeditated one.

11. I turn from your behaviour, to you as an individual. You are 33 years of age having been born in October 1977. You have a troubling, but not seriously bad, criminal record dating back to 2002. You have not been sentenced to imprisonment but have been fined and/or placed on good behaviour orders upon some five occasions. The last good behaviour order was made on 26 August 2009 and amended on 22 April this year.

12. Normally, steps might have been taken to obtain a pre-sentence report had it not been for the indication given by Mr Lawton that it was not proposed that any substantial additional penalty should be sought. Accordingly, in line with what was discussed yesterday, you are convicted of the offences of aggravated burglary and theft. A fine of $200.00 is imposed for the theft. A suspended sentence of imprisonment for a term of three months is imposed as to the aggravated burglary. That term is suspended upon you entering into a good behaviour order in the same terms as that made on

26 October 2009 and amended on 22 April 2010 save that the good behaviour order is to continue for a further three months. That is until 21 July 2011.

13. In relation to the fine I grant a stay of three months given the Christmas period.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Teague.

Associate:

Date: 17 February 2011

Counsel for the Prosecution: Mr J Lawton

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Accused: Mr J Sabharwal

Solicitor for the Accused: Legal Aid ACT

Date of hearing: 14 December 2010

Date of judgment: 15 December 2010