Director of Public Prosecutions v Danielowski

[2023] VCC 1384

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00600

DIRECTOR OF PUBLIC PROSECUTIONS

v

JONATHON DANIELOWSKI

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2023
DATE OF SENTENCE:	3 August 2023
CASE MAY BE CITED AS:	DPP v Danielowski
MEDIUM NEUTRAL CITATION:	[2023] VCC 1384

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords:  Aggravated burglary – unlawful assault

Sentence:Convicted and sentenced to five years’ and five months’ imprisonment with a non-parole period of three years’ and six months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Addams	Office of Public Prosecutions
For the Accused	Ms J. Ball	James Dowsley & Associates

HIS HONOUR:

1Jonathon Danielowski, on 3 August 2023, that is this morning, at the
County Court of Victoria sitting at Melbourne, you pleaded guilty to a single charge of aggravated burglary on Indictment No. N12580380.  This charge has a maximum penalty of 25 years' imprisonment. 

2You consented to a related summary charge of unlawful assault being heard at the same time as your plea hearing.  You pleaded guilty to this charge and has a maximum penalty of three months' imprisonment.

3You admitted an extensive and relevant criminal history which commenced in 2015 and continued to the date of the offending before this court.  You have spent 247 days pre-sentence detention, not including this day.

The circumstances of your offending

4The prosecutor tendered a Summary of Prosecution Opening for Plea dated
3 July 2023.  It was Exhibit “A” and the prosecutor read this summary into the record of the court. 

5You and Joshua Cousins, your victim in this case, were acquaintances.  On 29 November 2022 at around 1 pm you called Cousins, and you discussed a $50 debt, which a friend of Cousins owed to you.  You agreed that you would attend at Mr Cousins' home.

6At around about 5 or 6 o'clock you arrived at Cousins home, located in Werribee, with your then partner, Erica Moso. Mr Cousins invited the both of you inside to discuss the $50 debt that Cousins' friend owed to you. 

7You then told Cousins that you wanted him to take you to the friend, and Cousins told you that he did not know where his friend was.  You became erratic and agitated.  You punched Cousins a couple of times in the face.  You then picked up a bottle that you had been drinking from and held it as if you were going to strike or hit Mr Cousins with it.  I note here, you are not charged with an assault with a weapon. Mr Cousins has then said, 'Okay, okay, just go outside and we'll go', and you and Ms Moso then walked outside into the backyard of Mr Cousins' premises. 

8Once you were outside Mr Cousins slammed the door shut and locked you both out.  He hoped that you would just calm down and leave. You then started yelling at Mr Cousins that you wanted him to come outside first of all and then bashed at the door. This went on for approximately one hour.  Mr Cousins and Ms Moso were trying to calm you down.  Mr Cousins was very concerned, and texted his mother and his neighbour, asking each of them to call the police.

9You have then used a box cutter blade to cut a hole in the security door next to the lock.  That was your attempt to unlock the door.  When that failed you then picked up a lawnmower which was outside and threw it through a glass door, which was a full-length door from ceiling to floor, next to the sliding door.  You smashed that window.  You then walked into Mr Cousins' house or unit through the smashed window.  That is the charge of aggravated burglary.

10Mr Cousins then tried to lock himself in the bedroom.  You have barged in.  You have grabbed him by the neck and punched him in the face a number of times.  You then took a drawer from a chest of drawers in Mr Cousins' bedroom.  You were holding it up and swinging it at him. 

11Police have then arrived at Mr Cousins' home and at that stage both you and Mr Cousins were inside.  They could hear the argument from the outside and things being thrown around.  The police announced themselves and knocked on the door.  You came out through the same broken window and you were arrested by police.  Mr Cousins came out of the house with a bat and put it down when he was told to by the police.  At no stage had Ms Moso gone into the house and was outside the house when the police arrived.

12You were interviewed on that day by the police.  You voluntarily made the following admissions:

(a)  You had attended Mr Cousins' home with Ms Moso about a money dispute and that Mr Cousins' mate owed you the money.

(b)  During an altercation between you and Mr Cousins, you had subsequent to that, picked up a bottle but did not swing it at Mr Cousins, to ensure that Mr Cousins stayed on the couch.  This is the first occasion. 

(c)  You then agree it would have been fair to say that Mr Cousins thought he was going to be smacked over the head with the bottle, so that is why he remained on the couch. 

(d)  You went on to say that Mr Cousins had locked you out of the house, that you sort of knew that Mr Cousins did not want you there after he had locked you outside of the house.

(e)  In your words, you ended up, 'cracking the shits', and you and Mr Cousins’ had a big yelling argument, which had escalated. 

(f)   You then smashed Mr Cousins' window by throwing the lawnmower at it.  You said that you intentionally broke the window in frustration.

(g)  Both you and Mr Cousins’ were fighting inside the house. 

(h)  The fighting escalated and you had swung a couple of punches.

(i)    You then gave answers along the lines that the police had rocked up and you walked outside the house. 

(j)    You walked out through the same broken window.

(k)  You had asked Ms Moso to wait outside before the second altercation because you knew there was going to be a fight inside the house. 

13There is no victim impact statement from Mr Cousins.  I do not find that surprising.  He has declined the opportunity to make such a statement.

Your personal circumstances

14You were 33 years of age at the time of the offending.  You are now 34.  You have spent 247 days in pre-sentence detention.  You were born and raised in Townsville, Queensland.  Your mother was only 14 years old when you were born.  You have a younger brother.  Your biological father left the family when you were a two-year-old.  Your mother re-partnered with the person you refer to as your stepfather.  Your mother and stepfather were functioning alcoholics.  Your mother worked as a cleaner.  Your father was in the army.

15You describe your early childhood as difficult with episodes of drunkenness and cannabis use by your parental people in your home.  You struggled at school.  You were diagnosed with ADHD when you were a six-year-old.  Your formal education finished at Year 9 level when you were finally expelled from school.

16After school you managed to complete a cabinetmaking apprenticeship.  You have only engaged in paid employment in a sporadic manner since the completion of that apprenticeship.  You have mainly supported yourself through Centrelink.

17You have three children of your own aged 12 years and younger from a previous relationship.  Each of your children are in the care of their maternal aunt and under the supervision of the Department of Fairness, Families and Housing.  You last saw your children some six years ago.  I hope the life cycle for your children will not be the same as your life cycle has turned out to be.

18You have a long history of substance use.  You were drinking alcohol and smoking cannabis at the age of 13.  In part it was supplied to you by your parents.  By that I mean your mother and your stepfather.  You then slid down the drug scene to using amphetamines and ultimately ice or methylamphetamine by your mid-20s.  You have also used benzodiazepines, opiates, oxycodone, and heroin.  You have had multiple overdoses and on occasions you have been hospitalised as a result of it.

19At the time of this offending, you were drug affected. This is not a mitigating circumstance for your offending. 

20You have been examined by Dr Sarah Fratti in May 2020 for previous court appearances.  Her report, which is dated 2 June 2020, was Exhibit 2 on the plea.  At that time, she assessed your premorbid cognitive function as low/average range.  Dr Fratti opined that your cognitive functioning deficits are a result of the combination of an acquired brain injury, chronic drug and alcohol abuse and your diagnosed ADHD. Your acquired brain injury is a result of a traumatic brain injury which happened to you in 2014.  In her opinion you do not suffer from an intellectual disability. 

21At the time of the offending, you were in a relationship with Ms Moso.  Ms Moso was unable to calm you down at the premises prior to your offending.  Ms Moso was also a drug user and your relationship with her since your incarceration has ceased.

Sentencing considerations

22The basic purpose for which a court may impose a sentence of just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions, and the protection of the community.  In sentencing you I must have regard to a range of factors, such as the seriousness of your offending and your culpability for it and your personal circumstances. 

23I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.

24I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics of those sentences at the time.  I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case as indeed they are from one another.  Of course, current sentencing practices are but one of the considerations I have to take into account in this sentencing process.

25The only appropriate sentence for all of the offending is a term of imprisonment with a parole period to encourage and control your rehabilitation after you have completed your time in custody. 

26You have pleaded guilty to these charges.  Whilst the plea was finalised after some negotiations, it can be described as an early plea.  It has obviated the need for your victim to relive the events by giving evidence in court. 

27Further, your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.

28Your plea allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community. 

29Your plea is also a clear acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea to these two charges indicates and demonstrates remorse on your part.

30Your pleas of guilty also have a further utilitarian value because the plea is given in times when due to the COVID-19 pandemic you have not sought to delay the finalisation of these charges by conducting a trial at some indeterminate date in the future.

31The offending by you is serious in respect of each charge, although it is within a compressed timeframe.  The objective seriousness is indicated by the following matters:

(1)The maximum penalty set down in respect of each of the offences, in the case of aggravated burglary is 25 years' imprisonment; in the case of the unlawful assault charge, it is three months' imprisonment.

(2)Your offending is gratuitous in your threatening behaviour to your victim.

(3)You initially assaulted Mr Cousins in his house before he locked you out of it.

(4)You then smashed a full-length window with a lawnmower in order to access the property and get back to Mr Cousins.

(5)You knew Mr Cousins was inside the home when you broke in.

(6)You were known to Mr Cousins, you were acquaintances.

(7)You were outside the house before you broke in and you had plenty of time to calm down and leave.

(8)The time of entry into the house was in the early evening.

(9)Once you entered the property you assaulted Mr Cousins for the second time; and

(10)Your behaviour was motivated by a debt owed to you by some other person other than Mr Cousins.  It was drug related.

32I take into account your personal circumstances, which have been outlined earlier in these reasons for sentence.  This offending is directly related to your drug taking and the dealings you have with other persons in the drug scene. 

33You have prior convictions for assault, burglary and damage to property between 2015 and 2022.  In all, there are nine separate court appearances for that type of offending. 

34I assess your prospects of rehabilitation as poor. You have had a long battle with drug abuse and as long as you engage in illicit drug use you will reoffend with the inevitable consequences of longer and longer sentences with shorter and shorter periods of freedom in between those sentences.  Your criminal history points to such a conclusion.  The only way you can rehabilitate is if you just stop using drugs.

35I accept that your mental health problems of depression and anxiety, your ADHD and acquired brain injury will make your time in custody more onerous than a person of normal mental health.

36I have cumulated the sentence imposed for the two episodes of unlawful assault.  That small cumulation does not breach the sentencing principle of totality but marks out your additional criminality in your physical attack on Mr Cousins. 

37The most significant sentencing consideration is general deterrence in respect of the charge of aggravated burglary. The considerations of specific deterrence, just punishment, denunciation and protection of the community are also important in the overall sentencing synthesis in your case. 

38Would you stand, please.

39On Charge 1, aggravated burglary, you are convicted and sentenced to five years and three months' imprisonment.  On the summary charge of unlawful assault, you are convicted and sentenced to two months' imprisonment.  I order that the sentence for the summary charge be served cumulatively upon the sentence imposed on Charge 1.  The total effective sentence is five years and five months.  I fix a non-parole period of three years and six months.

40Pursuant to s6AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to seven years and six months with a non-parole period of five years, and I declare that you have served 247 days' pre-sentence detention.

41Is there anything further?

42COUNSEL:  No, Your Honour.

43HIS HONOUR:  Thanks, counsel, for your assistance in this case.  They are always difficult.  You can remove the prisoner.

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