Director of Public Prosecutions v Bukovskis

[2023] VCC 1321

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT WARRNAMBOOL

CRIMINAL JURISDICTION

CR 23-00253

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW BUKOVSKIS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	27 July 2023
CASE MAY BE CITED AS:	DPP v Bukovskis
MEDIUM NEUTRAL CITATION:	[2022] VCC 1321

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pirrie
For the Accused	Ms J. Kennedy

HIS HONOUR:

1Matthew James Bukovskis, on indictment ending 963 you have pleaded guilty to one charge of burglary, one rolled up charge of theft of a firearm and one charge of prohibited person possess a firearm.  Those crimes carry maximum penalties of 10 years, 15 years and 10 years respectively.

2The theft of a firearm charge carries a 50 per cent increase in sentence on what an ordinary theft carries.  I will refer again to that in a moment.

3On indictment ending 008 you have pleaded guilty to one charge of burglary and one charge of theft.  The charge of theft carries a maximum penalty of 10 years' imprisonment.

4You have also pleaded guilty in relation to that second indictment to four uplifted summary matters.  I find each of those summary matters proved and you are convicted and sentenced to seven days on each.  All those sentences to be concurrent.

5You are now 38 years of age and have pleaded guilty to one settled indictment and I do not know about the other one.  You must get the utilitarian benefit of that plea of guilty and in this situation you are also pleading in the circumstance of Worboyes and I take that into account. 

6Insofar as remorse is concerned it is very difficult to find a shred of it.  In your particular situation there is what purports to be an apology written to the victims and I will be referring to that again later.  I will give you some benefit for it although it seems to me that on the face of it you had little option but to plead because of your DNA being found in the first indictment and because of your regular appearances on CCTV insofar as the second indictment is concerned.

7You have a prior criminal history which is of real significance in this sentencing process.  I am reluctant to rely on the actual figures that are given as the convictions all come from South Australia.  But on my calculation you have been sentenced on about five or more charges relating to firearms to sentences of imprisonment including what purports to be a sentence of two years and four months' imprisonment for supplying firearms.

8You also have a sentence of 25 months which inter alia appears to have included aggravated burglary and you have also received 10 months in relation to firearms related matters that you were given a good behaviour bond for which you obviously subsequently breached.  That offending all takes place around about 2015 or so until the present time.

9Going back further than that you do have prior convictions back in the early 2000s for assault and for what would appear to be aggravated burglary as well.  The assault matters go back to 2011, 2008 and 2008 and on each of those you were given what purports to be either an actual prison sentence or a suspended prison sentence.  You have many other prior convictions mainly relating to driving.

10At 38 it is a serious criminal history indeed and in this situation places the gravity of the offending in perspective.

11The circumstances of the first indictment are that on 20 January 2022 at about 11.30 in the morning a Mr and Mrs Robinson left their property at Strathdownie to cart lambs to another property.  I have seen the photographs of the property and it is a very isolated property.  Hundreds of yards, as I understand it, the house is from the road and a very, very soft target indeed.

12They were away for around about 45 minutes or so and when they returned they saw a black Holden sedan with white stickers near the vehicle shed.  Mr Robinson had never seen the vehicle before.  They parked their ute between the house and the sedan.  As Mr Robinson began to open the door of the ute two male offenders ran from the rear of the property.  One of them was you.

13One of the offenders was holding three firearms by their barrels and that offender was described as being half a foot shorter than the other one.  Mr Robinson recognised the firearms as the firearms that he kept in a firearm safe in a shed at the rear of the property.  The other offender which you say is you, was holding a silver jemmy bar.  You waved that bar towards the ute before hitting the side of the ute with the jemmy bar.  Clearly those actions were totally gratuitous and caused terror to the people within the ute, Mr and Mrs Robinson.

14The other offender raised one of the firearms in the direction of the ute.  Mr Robinson yelled at his wife to get out of the area.  She reversed the vehicle away from the area and turned around.  The shorter offender kept pointing the firearm at them causing them to be in fear of being shot.  They drove in a southerly direction away from the property and you and your co-accused left the property driving in a northerly direction.

15They then went back to the property and went to the gun safe.  There was a hole in the safe and an angle grinder on the floor next to the gun safe.  I have seen photographs of it and it is clearly a relatively professional job as to how that safe was opened.  It was opened by the use of an angle grinder and obviously the assistance of a jemmy.  It is clearly a premeditated matter.  It is hard to believe that whoever was with you or you did not know that those guns were there and that was the purpose of the actual burglary.

16Police then took samples from a grinder and a right black glove that were found together with flexible grinding discs and they revealed a match to you, Mr Bukovskis which places you inevitably at that scene.

17Police, after finding that out, went and searched your property in
Mount Gambier and found one of the rifles that had been taken buried in the rear yard.  It was wrapped in newspaper dated 22 January 2022 which, of course, is only a day or two after the burglary and theft took place.

18You were arrested and were then expedited to Victoria.  On the trip back you had been given a general caution and you told the police officer but was not adopted later by you but your counsel relied on parts of this conversation in any event, that you were put onto a friend of a friend who said if you drove the car you would get half a ball of ice.  You said that another friend said he would give a gram if the firearm could be buried at your house.  You also said that you were forced to participate by the other offender who put a gun to your head and threatened your family.  You then made a no comment record of interview.

19In view of the overall situation here I am quite prepared to say I believe not a word of any of that.  I think it is just quite clearly lies particularly about the other offender putting a gun to your head.  It is clear that you were very much implicated in this burglary and theft and played a very significant part in it.

20It is important to note when the innocent victims arrived back at their home you were the one who attacked the car with the jemmy bar and I will again be referring to your letter of apology in a moment but you are clearly in this up to your neck and any suggestion that you were under some sort of duress I reject entirely.

21The circumstances here are that you did a no comment record of interview which, of course, is your right.  One of the reasons that theft of firearms carries an additional penalty to normal theft is the danger of firearms within the criminal community when mixing with the general community.

22Your refusal to give a record of interview whilst it does not aggravate the situation, obviously in circumstances where those guns are still at large in the criminal community one can only assume that there is a high risk that they are being used for criminal purposes.  That was clearly your intention and your actions have allowed that situation to continue.

23Again, I do not think that aggravates the situation but the mitigation that is involved if you had genuine remorse would be to try and get those guns away from being a danger to the public and you have clearly made, on what is before me at least, no attempt whatsoever to do that.

24It is also clear here that you could easily have been charged with aggravated burglary because of the jemmy bar and you could easily, in my view, have been charged with armed robbery.  Each of those crimes carries a maximum penalty of 25 years which, of course, is double what you are facing here.

25I certainly do not sentence you for those crimes but it is a situation where the jemmy bar was taken and you clearly used it as an offensive weapon later on during the process of this.  Someone at the OPP seems to have taken the view that the appropriation was complete before the jemmy bar was used and the gun was pointed.  It has always been my understanding that appropriation in a situation like this was a 'continuing phenomenon'. 

26Be that as it may, I make it clear I do not sentence you for those particular crimes but what it does do when one looks at the overall situation here this burglary and this theft of firearms, in my view, are very serious examples of the crimes involved.

27Clearly it was planned.  It must have involved some form of surveillance or some form of knowledge that those guns were there.  It was done in broad daylight and one can only guess at what might have happened if Mr and Mrs Robinson had been at home when you two arrived.

28I also note with some interest that in your apology or purported apology you refer to you and your associates.  Whatever that means I do not know.

29The circumstances here are such that an average normal member of the public would be outraged by what you did.  Bearing in mind that you have got priors for guns.  You have been to gaol for guns before.  You have been in gaol for violence before and you have been in gaol for dishonesty before.

30Each of Mr and Mrs Robinson made victim impact statements.  Mr Robinson read his out in court very courageously and very succinctly.  Mrs Robinson, obviously being distressed, hers was read out by the learned prosecutor.

31Those victim impact statements very eloquently and in very short compass outlined the seriousness of what you did.  It is an absolute outrage that people can come home to be confronted with firearms, with violence, have the sanctity of their own home whipped away from them.  It is a situation of humiliation for a man in those circumstances of being unable to protect his wife as he sees it.  Each of them clearly feared for their life during your attempts to maintain your appropriation and they, hopefully, will get over this but as they say, they have received a life sentence and I think that is a very accurate description.

32In their victim impact statements they clearly hoped that you would get one.  Obviously that cannot be the case but I fully understand their anger and hatred, in fact, as one of the victim impact statements said.

33Mr Robinson said;

'Since that day we have been made to feel shocked, tearful and deeply unsafe.  It has and will continue to affect our mental health and well-being.  We've been completely traumatised.  We've been left in a state of emotional despair.  It's been overwhelming and affected our nervous system.  You've destroyed our home environment, our ability to feel safe and secure in our own house.'

34Mr Robinson has then said;

'We have been alone with our thoughts and the memories of that day and I still struggle with the fact that as a husband, a father, a man and a protector I was made to feel helpless, made to feel violated and our personal space invaded to the highest degree.  We've been made to feel like this is long‑lasting because each time we are questioned I recall this day from the beginning.'

35They are the dreadful consequences of offending such as this.

36After you were arrested and returned to Victoria despite the seriousness of the offending someone ultimately gave you your bail and you then went on a CISP program which is a court supported bail program.  They have put in a report that said you were doing well and that you appeared to be drug free and the like.

37During the course of that six months or so that you were on bail you had short term work at Bojangles Pizza Restaurant located in Liebig Street in Warrnambool.  You worked there for a short time as a cleaner but apparently left because there were not enough shifts for you despite your description of being homeless and derelict.

38There are statements from other people who were working there saying that you were clearly considering, if not planning, burgling those premises back as far as June or July.  You had worked out where the blind spots would be.  You indicated you were going to take the tills and you would take the tips jar.  In any event, in the middle of November 2022 you did just that.

39You left your hotel room in Warrnambool and took with you a mask, gloves and a small black backpack.  You walked through the Warrnambool CBD avoiding the main streets.  You were picked up on CCTV on a number of occasions, as I understand it.

40You arrived at the rear of Bojangles Pizza Restaurant and entered via the car park.  You forced entry using a jemmy bar or similar tool and you then forced open the metal lock of the wooden safe.  You took cash tills and brown leather satchels containing the float for the next day, being cash in the amount of $1,060.

41You also took the tips jar which was estimated to contain $300 in cash.  So not only were you burgling the person who previously had you employed there, a massive breach of trust, you were in fact stealing the tips of the other employees of those premises and it shows the attitude you have got.

42It was put to me that you had done well on the CISP program.  You did that burglary without any drugs at all.  You blame drugs on all your other offending but that burglary shows that you are a criminal whether you are using drugs or not.  It certainly does not assist you in any way, shape or form.

43As I understand it there is no victim impact statement in relation to that matter. 

44It is clearly a significant and serious burglary.  It was prepared.  In fact, as the Americans would say, you had cased the joint months earlier and you carried it out.  Your reason for doing that apparently was you claiming that your partner's car had broken down and you could not get to Melbourne.  I see no reason why you could not have taken a train but in any event you were arrested 14 days after the burglary took place.  It is clear from the letter of support for you put in by your partner that the vehicle still was not fixed and in fact, still has not been fixed and she attends necessary medical appointments for the children by taking the train to Melbourne which is what you could have easily done.

45That occurred, as I said, whilst you were on bail, not using drugs and it is very significant, in my view, indeed.

46The overall offending, I think, is very serious.  The circumstances of it are such that whilst I am clearly not sentencing you for crimes of aggravated burglary or armed robbery because you are not charged with it, it places these matters at the high end as, I think, I have already indicated.  Very high end in my view of the matters that have been charged.

47I am certainly aware of totality.  I am certainly aware of the need, if possible, to avoid a crushing sentence but a custodial sentence with a head sentence and a minimum term of very significant proportions is needed.

48Clearly, this sort of offending calls for the application of general deterrence.  The community is terrified of the use of guns in the way that you and your co‑accused, for whom you are responsible, did on this occasion and overall concerned with guns and the availability of them to the criminal fraternity.

49Clearly in your situation gaol seems to have never deterred you in the past but specific deterrence has to play a part.  Denunciation in this situation, and any likeminded person living in the country is aware of the difficulties of living in that sort of isolation and the vulnerability of people in that sort of isolation, is very strong in these circumstances.  You just cannot do this.  Many people would regard it as not only violent and gratuitous but gutless offending.

50It calls for appropriate punishment and appropriate punishment it will be.

51It is quite clear that when you are at large you have no hesitation in the use of firearms.  I also note that when you spoke to Mr Cummins, whether you were telling the truth or not is another matter, but you claimed twice you had tried to kill yourself with firearms.  Once it would not go off and another time you missed from an inch away or something.  Whether that is true or not I do not know but you have clearly had very significant dealings with firearms over an extended period of time.  Together with, as I already indicated and I will not labour the point, gaol sentences for both dishonesty and violence.

52I then look to the matters that were put on your behalf.  The first of those matters is you pleaded guilty and I accept that with the limitations I have said about remorse.  In the absence remorse I am giving you some benefit for it.  It is not an aggravating feature.  It just simply removes one of the many mitigating features and important mitigating features that can occur in a situation such as this.

53It is clear, in my view, that you are lying about your involvement in all of this and in those circumstances I then turn to the purported apology that you wrote.  I do not know whether Mr and Mrs Robinson ever read this document but if they have I am sure they just found it simply insulting.

54You said in that apology;

'I'm sure without a doubt both of youse were very frightening by our presence and actions that day.  For what it's worth I too was scared.  I was only the driver that day and was involved in something that was absolutely new to me.'

55I interpolate, no, it was not.  You have done eight burglaries.  You have been involved in firearms and you have been in gaol for violence before.

'It doesn't excuse what I did at all.  All I know is that I wish I hadn't done it, gone through it because it's not my character to be part of things such as this ever in the past.'

56I interpolate, yes, it is.

'Hence why I was scared too.  I still have nightmares of that day.  I can't begin to imagine what it would be like for the both of you.  I'm so very sorry.'

57That apology then goes on.  It is an extraordinary document.  It is simply saying that they should feel sorry for you in some way, shape or form as far as I can read it.  It is a diatribe of self-pity and self-justification.  I think that is, in effect, damning it with faint praise.

58I have the reports from CISP which are, I agree, laudatory of you.  I do not know whether CISP would have been providing that report if they knew that you were working down at Bojangles planning on burgling it. 

59I do take into account that hopefully there is a sign there that you could rehabilitate if you were prepared to.  You have done courses in gaol and I accept that.

60A report was prepared by Mr Cummins, a forensic psychologist very well known to me and his opinions I very much value and have done for many years.  In his report and I will not go through it in great detail.  It has been tendered and it is on the court record.  At the time he saw you, you were 37 years of age and you apparently at that time were being held in protection.  I do not know whether that is still the situation.  I have not been told about that but I am aware that if you are in protection that does not help in terms of doing programs and the like.

61You then, on speaking to Mr Cummins, talked about having been on ice which is why you wrote a letter of apology and I am not going to refer back to that again.

62You spoke about your present partner.  You told him that you have two daughters named Winter and a six month old daughter named Sapphire.  They have both, as I understand this, now been diagnosed with suffering from cystic fibrosis and obviously that requires ongoing treatment.  Your partner has put in a letter of support on your behalf.  She is now living in Portland.

63You pointed out to Mr Cummins that you have another three children from another relationship who are aged between 14 and 15.  You told him that you have had no contact with those children for approximately the past four years. 

64You said that your parents separated when you were young.  That you were put into the care of a maternal aunt when you were aged around about two and then from about when you were 15 lived with your mother.  You have had intermittent contact with her over the years.  You have said, whether it be true or not I have no idea, that when you were younger you were sexually abused on a number of occasions at YMCA camps and you claim to be taking some action about that.  Again, there is no support for that but I certainly do not find that it did not happen.  I would not do that in a situation such as this.

65Your father lives in Port Pirie and apparently, according to you, is very ill indeed.  You have a step-father who was intermittently part of your life when you were aged about 11 to when you were aged about 28.  You spoke in negative terms about him. 

66You apparently left school at around about Grade 6 and you claim to have been diagnosed with ADHD and put on dexamphetamine from around about the age of 11.  You say you left school at around about 11 or 12 after which you completed, you say, two civil construction courses.  Between 24 and 34 you worked in shearing sheds around Penola.  Since then you have done limited manual work and you have never been on, as I understand it, workers compensation or on a disability pension.

67You say that you have used drugs since an early age.  Mr Cummins points out you have never been diagnosed with a narcotic physical medical condition.  You have never been prescribed antidepressant, antianxiety or antipsychotic medication and he said that when you were addicted to ice you had psychotic symptoms.  You have never been hospitalised in a psychiatric ward.

68You told Mr Cummins that when you were about 28 you became suicidal.  You discharged a loaded firearm which contained wet bullets and as a result the gun misfired and you were not injured.  You then said about the same time you put a loaded gun to your chin whilst in a car, misaimed and fired a shot through the roof of the vehicle.  Whether that is true or not I have got no idea but it certainly indicates that you have familiarity with firearms over an extended period of time.

69You said that you first became dependent on methamphetamine around about the age of 16 and you said you were encouraged to smoke that by your step‑father.

70I accept that it will be more difficult for you, though as your partner says, you have failed as a father and as a partner, knowing in the time that you are in custody that you have two children who do have the conditions they have got and it will not be easy for your partner in any way, shape or form.

71You told Mr Cummins that you were dependent on amphetamine at that time.  You got involved because you were promised amphetamine as your payment for getting involved in the theft of firearms.

72You said to Mr Cummins insofar as the burgling of Bojangles was concerned, that you did it out of a sense of desperation.  As I say, I take all of those explanations with a grain of salt.

73Mr Cummins is well known to me.  He said that you spoke in a 'unusually casual manner' and that you presented as mildly anxious and you stated that you felt depressed.  He went on to say that you did not present as being psychotic or schizophrenic.

74He then went on to say;

'With some encouragement at interview we spoke about victim empathy in relation to the offending to which he is now pleading guilty.  Although I did form the opinion he was very focused on his current legal situation and on the issue of how much further time he may be required to serve in custody, at interview he stated his life had essentially been dominated by his dependency mainly on methamphetamine.'

75Mr Cummins went on to say you did not speak in an antisocial or antiauthoritarian manner though he said on the basis of your criminal history you could be diagnosed as having an antisocial personality disorder.  I would have thought that was pretty much self-evident.

76Later on in terms of your personal presentation, in his opinion there is clearly no mental illness here other than the potential of antisocial personality disorder.  Mr Cummins said,

'In my opinion Mr Bukovskis requires mental health treatment to assist him to focus more rigorously on issues related to victim empathy.'

77In other words, you need some mental health treatment to make you understand the damage that you do to people.

78However, in this circumstance I have taken into account what I can.  I have taken into account the submissions made by your counsel on your behalf and a lot of the matters contained within them.  I take into account Mr Cummins' report.  I have said what I think of that purported apology.  In the end this is clearly a situation which requires a very significant term of imprisonment indeed.

79As I think I have already indicated, I am well aware of the principles of totality and I am well aware of the need, if possible, to avoid a crushing sentence but the prospects of your rehabilitation I regard as bleak and I think the risk of you reoffending where you are prepared to burgle when you are not even on drugs has to be regarded as high.

80In those unfortunate circumstances you will be receiving a sentence that is appropriate.

81Accordingly you are sentenced to be imprisoned as follows.

82On indictment 963 on the charge of burglary, two years and six months.

83On Charge 2, the rolled up charge of theft of three firearms, two of which have not been recovered, five years.

84On Charge 3, possession of a firearm which I note was from the actual burglary itself, 18 months.

85I direct that 12 months of the sentence imposed on Charge 1 and three months of the sentence imposed on Charge 3 be served cumulatively upon each other and upon the sentence imposed on Charge 2.

86That gives a total effective sentence of six years and three months.

87On indictment ending 008 on Charge 1 of burglary, 18 months.

88On Charge 2 of theft, 12 months.

89I direct that three months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed upon Charge.1.

90That gives a total effective sentence on that indictment of 21 months.

91I direct that nine months of that 21 months be served cumulatively on the sentence imposed on Charge 963.

92That gives a total effective head sentence of seven years.

93I direct you serve a minimum term of five years before becoming eligible for parole.

94I direct that 334 days be reckoned as having been served under this sentence.

95In these circumstances I say pursuant to s6AAA of the Sentencing Act that but for your plea of guilty on these matters I would have sentenced you to be imprisoned for a period of 10 years with a minimum term of seven.

96Are there any other orders I need to make other than the disposals?

97MR PIRRIE:  No, Your Honour.

98HIS HONOUR:  Those figures add up?  I'm sure they do but if you just wouldn't mind doing it for me.

99MR PIRRIE:  The seven days, the summary matters - - -

100HIS HONOUR:  Seven days, sorry.  Summary matters, seven days on all of them, concurrent.  Seven days, each one, all concurrent.  They were on the second indictment, I think.  They were attached to that.

101MR PIRRIE:  Yes, they were.

102HIS HONOUR:  Yes. 

103MR PIRRIE:  Yes, Your Honour.

104HIS HONOUR:  All right.  Yes.  Can I just say to Mr and Mrs Robinson, very courageous the way you've gone through this process and I just hope things can work out for you in the future.  Let's hope so.

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