Director of Public Prosecutions v Glowacki
[2022] VCC 2224
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00367
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID GLOWACKI |
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JUDGE: | HER HONOUR JUDGE QUIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 November 2022 |
DATE OF SENTENCE: | 9 December 2022 |
CASE MAY BE CITED AS: | DPP v Glowacki |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2224 |
REASONS FOR SENTENCE
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Subject: Burglary and damage property.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Raimondo | OPP |
For the Accused | Mr J. Smith | Josh Smith Legal Pty Ltd |
HER HONOUR:
1David Glowacki, you have pleaded guilty to a charge of burglary and a charge of damage property. The maximum penalty for each of these offences is 10 years.
2The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 2 November 2022 (Exhibit A) and can be summarised as follows:
3West Side Place Apartments (the apartments) are situated in Lonsdale Street, Melbourne. Tower One in the apartments was largely occupied by people however the upper levels of the Tower One were still under construction. Level 61 in Tower One was blocked off to the public and was a construction site.
4During the afternoon of 26 August 2021, you gained entry to Tower One via one of the fire escape stairwells. You ascended from level 16 to 39, and opened fire hydrants as you passed, causing a large volume of water to surge down the fire escape and out onto the various levels of the building. The fire alarm was activated, and Triple 0 were called.
5The fire brigade members started to walk up the stairs, but due to the volume and pressure of the water, they couldn’t move forward. One of the managers at the apartments observed that someone had forced entry into the construction site on level 61 from the stairwell. He found that one of the tool strongboxes had been pushed down the stairs from the construction site to the fire escape landing on level 60. Your fingerprint was later located on the tool strongbox.
6There was extensive water damage to Tower One and hundreds of people had to be evacuated from the building and were provided with emergency accommodation.
7At about 1.06 am on 28 August 2021 you went to Albury police station and said you were concerned for your safety and wanted to speak to a high-ranking member of NSW Police, as the Victorian government and 'Asians' were chasing you and threatening your life. You were taken to hospital for a mental health assessment however before you were admitted you escaped.
8Police were later contacted by staff from Coles in Wodonga and you told police about a building that was flooded in Melbourne. You were again taken to hospital and admitted as an involuntary patient. You were released from hospital on 20 September 2021 and were arrested. You made a no comment record of interview and were remanded in custody.
9The quantum of damage to Tower One was assessed as being $9.75 million. This included the cost of repairs to apartments and common areas on the water affected levels, electrical repairs, lift repairs and building structural repairs.
Personal circumstances
10I received the following material filed on your behalf:
·Chronology: Exhibit 1
·Reports from Gina Cidoni psychologist dated 13 November 2021 and 15 November 2022; Exhibit 2
·Report from Dr. Jaya Reddy, your treating psychiatrist dated 18 November 2022; Exhibit 3
·Bundle of character references; Exhibit 4
11You are aged 53 and were born in Victoria. You currently live with your ex-wife, her partner and two sons in Melton. You have lived there since your release on bail – since then you have been compliant with medication and observed strict bail conditions.
12The chronology provided adequately sets out your personal history and circumstances. It is clear that you had a difficult childhood and suffered significant abuse at school and when in foster care. Your mother lives in Tocumwal and you hope to go there and assist her when this matter is finalised. Despite your troubled history, you were able to qualify as a chef and worked in a number of well-known restaurants in Melbourne until about the year 2000.
13You commenced a relationship with your ex-wife in 1988 and had two boys with her. You separated in 1993 though remained and still remain on amicable terms. You commenced another relationship and have a daughter Genevieve Nicholls now aged 23.
14You have been a patient of Dr Reddy since 2017. He reported that you have experienced PTSD symptoms stemming from multiple traumatic incidents in your life. Your current treatment and medications are set out in his report.
15In July 2000 you were involved in a car accident and severely damaged your left wrist – you went on a disability pension after this as you were unable to resume work as a chef. It was around this time you first encountered the criminal law – you have a number of prior convictions between 2003 – 2012 mainly for driving and dishonesty offences. I accept that none of your prior matters are as serious as this offending. I note you have a prior for damage property and for criminal damage. You have not been incarcerated until these matters occurred. You have no matters outstanding.
16Prior to this offending you were itinerant and living in a van in the Rye area. When Melbourne as a consequence of COVID went into lockdown in March 2020, your mental health deteriorated and you became obsessed with the notion that the Premier of Victoria in conjunction with others had an evil plot that was aimed at you.
17On the day of this offending when in the fire escape you noticed a room with hundreds of computers and turned on the fire hydrants on a number of floors in order to escape your pursuers. You hid in some air conditioning vents and other areas of the building. When you left the building, you made your way to Albury.
18On Friday, 28 August you went to Albury police – you told them that you wanted to speak to them about your life being at risk and that you had fled Victoria fearful for your safety. Police held concerns about your mental health and presentation and you were taken to hospital under the Mental Health Act though you left there, fearful that you were about to be injected.
19Your irrational behaviour continued and police were contacted when you were at Coles in Wodonga – you were described by police as 'clearly delusional and paranoid of everyone being involved to try to kill him'. You told police about flooding the building and rambled on about air conditioning and Chinese people hiding in a room with hundreds of computers.
20You was later made a voluntary inpatient at the Albury Hospital from 30 August to 20 September 2021.
21It was not disputed that you were mentally unwell at the time of the commission of this offence and that principles enunciated in Verdins were applicable to you. Ms Cidoni opined:
Paranoid schizophrenia is characterised by the experience of delusions and/or hallucinations. These debilitating symptoms blur the line between what is real and what isn’t. This in turn makes it difficult for you to lead a normal life.
Observable signs include seeing, hearing, or tasting things that others do not, suspiciousness and a general fear of others’ intentions., persistent, unusual thoughts or beliefs, difficulty thinking clearly, withdrawing from family or friends and significant decline in self-care.
Many of these factors were present before your psychotic decompensation from 26.08.21.
…
You were consumed by active paranoid delusions and hallucinations during the offending where you were suffering severe mental impairment and were not in control over your behaviour.
22Verdins principles that apply to you include that your mental impairment reduces your moral culpability in that it impaired your ability to exercise appropriate judgment, make calm decisions and rational choices, caused you disinhibition and you could not appreciate the wrongfulness of what you were doing, which was obvious during the commission of the offence. Principles of general and specific deterrence are moderated.
23Clearly there is a risk that imprisonment will have a significant adverse effect on your mental health because you will suffer disproportionality and it is likely to cause your mental health to deteriorate.
24I take into account your plea of guilty – it was indicated at an early time and no witnesses were required to give evidence. There is a utilitarian value to your plea as you have saved the cost to the community of a trial. The value of the plea is further enhanced given Covid and the impact that has had on this Court and the administration of justice in this State.
25I accept your plea is consistent with remorse. By your plea you have accepted responsibility for your offending and shown remorse. You expressed remorse to Dr Reddy and provided a letter of apology.
26I also take into account that the time you spent in custody was during Covid and there were restrictions on prisoner movement and limited visitors – your time in custody was more burdensome than for others before the pandemic.
Rehabilitation
27There are some features that auger well for your rehabilitation:
·You have the support of your family;
·Your first period in custody was difficult given your mental health issues;
·You are currently engaged in appropriate treatment and medication.
28The prosecution submitted that your prospects were guarded and dependent upon you continuing to receive treatment and taking your medication.
29I accept your prospects are reasonable but that it is absolutely necessary for you to continue treatment and medication. I note you were not medicated when this offending occurred.
Nature and gravity of the offending
30There were some aggravating features of your offending:
·There was a significant cost relating to repairs connected to the building of approximately $9.75m;
·Hundreds of residents required emergency accommodation;
·The impact on victims was significant
31Generally, it is the extent of physical damage caused that determines the seriousness of offending so in that regard this offending is at the higher level of seriousness for this type of offending.
32However, there was no planning and the offending was not motivated by greed or malice. As noted above, your moral culpability for this offending is reduced given your mental health at the time of the commission of the offence.
33Other sentencing considerations such as general deterrence, just punishment and denunciation are impacted by a consideration of your mental state at the time of your offending.
34Your counsel submitted I should impose a Community Correction Order – I had you assessed for that purpose. The prosecution submitted that a term of imprisonment was warranted but that a combination sentence was within appropriate range. I note that Ms Cidoni opined that imprisonment for you could be disastrous.
35I received a favourable report from Corrections. If you could please stand up. In respect of both offences I propose to sentence you to a term of imprisonment of 3 months' imprisonment and a community corrections order for a period of 3 years. You will be under the supervision of the Office of Corrections and there are other conditions as recommended in the report regarding mental health and treatment.
36I note that I did enquire as to whether you would be capable of doing a work component. The report indicated that that was not wise, given your mental state, and so I have not included a work component in it.
37Pre-sentence Detention is 95 days. Is that correct?
38COUNSEL: Yes, Your Honour.
39HER HONOUR: Thank you. Pursuant to s6AAA of the Sentencing Act 1991, if you had not pleaded guilty to this matter I would have imposed 6 months' imprisonment with a community corrections order, although that is rather unusual situation, given your mental health situation.
40Is there anything else, Mr Raimondo?
41MR RAIMONDO: No, Your Honour.
42HER HONOUR: Thank you.
43ASSOCIATE: Is this your signature?
44OFFENDER: Yes. Yes, Your Honour.
45ASSOCIATE: Thank you.
46HER HONOUR: Thank you. We will stand down, thank you.
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