Director of Public Prosecutions v Glowacki

[2022] VCC 699

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-20-00649 & CR-22-00076

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT GLOWACKI

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	5 May 2022
DATE OF SENTENCE:	12 May 2022
CASE MAY BE CITED AS:	DPP v Glowacki
MEDIUM NEUTRAL CITATION:	[2022] VCC 699

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentencing.

Catchwords:             Found guilty at trial - Plea of guilty – Aggravated home invasion – Theft – Reckless conduct endangering persons – Negligently deal with proceeds of crime – Drive whilst disqualified – Fail to render assistance after accident – Resist emergency worker on duty – Possess prohibited weapon – Possess controlled weapon – Going equipped to steal - Drive under the influence of drugs – Mandatory minimum – Bugmy principles enlivened – Parity - Relevant criminal history – COVID-19 pandemic.

Legislation Cited:     Crimes Act 1958 ss 23, 74, 77B, 91(2), 194(4); Road Safety Act 1986 ss 30(1), 49(2), 61; Summary Offences Act 1966 s 51(2); Control of Weapons Act 1990 ss 5AA, 6(1); Sentencing Act 1991 ss 6AAA, 18.  

Cases Cited:Cheung v The Queen (2001) 209 CLR 1; DPP v Wol [2019] VSCA 286; Worboyes v The Queen [2021] VSCA 169; Bugmy v R (2013) 249 CLR 571.

Sentence:Imprisonment for a period of 7 years and 6 months with a non parole period of 5 years and 6 months. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher	Office of Public Prosecutions
For the Accused	Ms M. Brown	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

1Robert Glowacki, on Indictment K13277544.2A you have been found guilty by a jury of one charge of aggravated home invasion contrary to s 77B of the Crimes Act 1958 (the Crimes Act), which carries a maximum penalty of 25 years imprisonment (Charge 1) (the first indictment).

2On Indictment K13277544.2C you have pleaded guilty to one charge of theft contrary to s 74 of the Crimes Act, which carries a maximum penalty of 10 years imprisonment (Charge 4), one charge of reckless conduct endangering persons contrary to s 23 of the Crimes Act, which carries a maximum penalty of 5 years imprisonment (Charge 5) and one charge of negligently deal with proceeds of crime contrary to s 194(4) of the Crimes Act, which carries a maximum penalty of 5 years imprisonment (Charge 6) (the second indictment).

3You have also pleaded guilty to the following related Summary offences:

·Drive whilst disqualified, contrary to s 30(1) of the Road Safety Act 1986 (the Road Safety Act), which carries a maximum penalty of 240 penalty units or 2 years imprisonment (Summary Charge 13);

·Fail to render assistance after accident, contrary to s 61 of the Road Safety Act, which in this case is a subsequent offence carrying a maximum penalty of 10 penalty units or imprisonment for a period of not less than 14 days and not more than 1 month (Summary Charge 16);

·Resist emergency worker on duty, contrary to s 51(2) of the Summary Offences Act 1966, which carries a maximum penalty of 60 penalty units or imprisonment for 6 months (Summary Charge 17);

·Possess prohibited weapon without exemption or approval, contrary to s 5AA of the Control of Weapons Act 1990 (the Control of Weapons Act), which carries a maximum penalty of 240 penalty units or imprisonment for 2 years (Summary Charge 19);

·Possess controlled weapon without lawful excuse, contrary to s 6(1) of the Control of Weapons Act, which carries a maximum penalty of 120 penalty units or imprisonment for 1 year (Summary Charge 20);

·Going equipped to steal, contrary to s 91(2) of the Crimes Act, which carries a maximum penalty 2 years imprisonment (Summary Charge 21); and

·Drive under the influence of drugs, contrary to s 49(2) of the Road Safety Act, which in this instance carries a maximum penalty of 120 penalty units or 12 months imprisonment (Summary Charge 22).

4You have also admitted your prior Criminal Record.

Circumstances of the offending

Indictment K13277544.2A

5In sentencing you in relation to the aggravated home invasion, I am bound by the principles in the case of Cheung v The Queen.[1]  As such, I must interpret the facts in a way that is consistent with the jury's verdict. At the plea hearing the prosecution filed a plea opening which is agreed by the parties to represent the facts as found by the jury in this instance, and may be summarised as follows:

[1] (2001) 209 CLR 1.

6Your co-accused in this matter is your cousin, Lauchlan Bright.

7At about 12:50am on the morning of 28 November 2019, Mr Bright and two co-offenders went to a house at 1A Rupert Street, Mitcham.  One of those co-offenders was you. Inside the house were the complainants, Myles Kummrow and Katiya Foxi.

8Mr Kummrow was alerted to the presence of you, Mr Bright and the third co-offender at the house by way of a motion sensor that was positioned over the front gate. Mr Kummrow and Ms Foxi went to a CCTV monitor that was in the lounge area and watched the three of you jump the front fence of the property.

9Ms Foxi went to the kitchen and placed her mobile telephone underneath some items so it was hidden. Mr Kummrow ran to the rear of the house as he called 000. He left the house through the back door and jumped some fences before hiding in a neighbouring garden.

10You and the two co-offenders were captured on CCTV footage as you approached the front door of the property. It also depicted you and your two co-offenders kicking and forcing the door until it was damaged enough for you and the two co-offenders to crawl into the house.

11Mr Bright was captured on CCTV carrying an axe/hatchet style weapon inside the house. It had a distinctive camouflage pattern handle. Mr Bright was wearing black pants, a grey hoodie, a navy puffer vest, black runners, face coverings, gloves and a satchel across his body.

12One of the offenders was captured on CCTV footage carrying a firearm and an edged weapon inside the house. That offender was wearing black pants, camouflage waterproof jacket, black runners, a black face covering and black sunglasses.

13The other offender was depicted on CCTV carrying a black handled knife and silver torch inside the house. That offender was wearing black ‘Nike’ pants with a white tick on the left front leg, a black waterproof jacket, white and multicoloured ‘Nike’ runners, black face coverings with a white skull pattern and black and grey gloves. It is these facts that relate to Charge 1 – aggravated home invasion.

14After entering the house, Mr Bright identified the CCTV monitor and then searched for the hard drive with the intention of disabling it. He searched through drawers and put items of value such as laptops into his satchel.

15One of the offenders was captured on CCTV confronting Ms Foxi inside the kitchen. That offender was holding the knife towards her in a threatening manner. He then took various items as Ms Foxi opened drawers and appeared to look for things. She appeared shaken throughout the incident.

16Mr Bright left the house and put a number of items he had taken into Ms Foxi’s car that was parked in the driveway. He then went back inside the house. A short time later, one of the offenders fled from the address leaving Mr Bright and the other offender inside. A little later, they also ran from the home.

17At about 1:05 that morning, Senior Constable Klara Sceberras and Constable Dean Kirk arrived at the house. They saw Mr Bright as he ran from the property, however, they then lost sight of him. The police then spoke to Mr Kummrow and went inside to view CCTV footage of the incident. Although Mr Kummrow and Ms Foxi were uninjured, they were upset and shaken as a result of being confronted by the offenders and their weapons.

18A short time later, the police placed a cordon around the property. Leading Senior Constable Dench and a dog attached to the Canine Unit commenced a search of the area with other police officers.

19At 1:44 that morning, police attached to the Public Order Response Unit were requested to intercept a car that was driving strangely in the vicinity of Rupert Street, Mitcham. Police intercepted a black 2016 Holden Commodore station wagon.  The driver and sole occupant of the car was Alyce Hammel.

20Ms Hammel told police that she was on her way to 5 Rupert Street, Mitcham, to visit a friend called Sarah. She was asked by police to leave the area.  Subsequent enquiries revealed that no one by the name of Sarah lived at 5 Rupert Street.

21About 50 minutes after commencing a search, the Canine Unit located Mr Bright in the backyard of 9 Clive Street, Mitcham. He was wearing only one shoe. Mr Bright was arrested and searched at the scene before being taken to Box Hill Police Station.

22The police continued to search the vicinity for the other accused men, however, they managed to evade the police and flee the area.

23At 3:40 that morning, police went to the backyard of 7 Clive Street, Mitcham.  There, they found a black shoulder bag containing keys, a screwdriver, a black glove and a black handled flick knife. Those items were photographed in situ and then seized by the police.

24At 4 o’clock that morning, those same police officers went to the rear yard of Unit 4, 1 Rupert Street, Mitcham. At that location, they found a black ‘Nike’ Air Max runner and a black set of knuckledusters. Those items were photographed and seized.

25Mr Bright was wearing a navy vest, a grey hoodie, black trousers, one black Nike runner a black ‘New Era’ cap and he was in possession of an iPhone. Those items were photographed and seized by the Police. Mr Bright gave the police some mobile telephone numbers of people he wanted to contact. One of those was a person called Alyce. Police ascertained that the number provided was registered to Alyce Hammel who had earlier been intercepted by the police close to Rupert Street.

26At 8:30am on the morning of 28 November 2019, Crime Scene Officers attended 1A Rupert Street to conduct an examination. They photographed and seized a black CF70 Torch, an ‘Engraver’ green headlight and a ‘Toolpro’ small tomahawk with multi coloured towelling handle. The tomahawk had the same appearance as the item carried by Mr Bright during the incident.

27Some electronic items such as laptops, mobile telephones and other personal property belonging to Mr Kummrow were found by Crime Scene Officers on the front seat of Ms Foxi’s car. Those items were photographed and returned to Mr Kummrow.

28Earlier on in the night of 27 November 2019, Mr Bright and you were together at the Croydon Hotel about an hour or two before the commission of the offence. Mr Bright was wearing some of the clothing that he is later depicted wearing in the CCTV footage from 1A Rupert Street. It is the same clothing he is wearing when he is apprehended by the police shortly after the home invasion.

29Various telephones and telephone numbers were investigated by the police.  That investigation revealed that:

a.      the telephone police seized from Mr Bright had the number 0432282438;

b.      Mr Bright’s telephone had contacted other mobile telephones a short time prior to the alleged offending.  The numbers contacted were 0452669192 and 0401344224. The former was registered to Alyce Hammel and the latter to you;

c.      Ms Hammel had attempted to contact Mr Bright and you on numerous occasions shortly after the alleged offending and prior to her being intercepted by the police close to Rupert Street that morning; and

d.      the telephones of both Mr Bright and you were turned off at the time of the alleged offending.

30A few days later on 30 November 2019, a resident of Rupert Street was driving her car when she noticed a rear door was not closed properly and that it was rattling. When she stopped to close the door, she noticed several smears and droplets of blood on her car. Ms Strickland contacted the police as she was aware of the alleged offending and thought that the blood may have been connected to the incident. Before driving her car that day, Ms Strickland’s car had not been driven since the home invasion in the early hours of 28 November 2019.

31A few hours later, Crime Scene Officers went to Ms Strickland’s house in Rupert Street. They conducted an examination and took photographs of the car and the blood on it. Two samples of the blood were taken from the car and one from the garage floor where droplets were located upon examination. The samples were sent to the Victorian Police Forensic Services Laboratory for analysis.

32On 13 December 2019, police were notified that the blood located at Unit 3, 5 Rupert Street was from a single contributor. The profile of the sample matched your DNA.

33On the morning of 3 December 2019 (five days later), a mobile telephone was found in a car in Capital Avenue, Glen Waverley. An analysis of that mobile telephone revealed that it was registered to your mother, Lisa Glowacki.  Information retrieved from a download of the phone revealed that it was logged onto a Facebook account in the name of Rob Gee Glowacki. The analysis also revealed some Facebook messages from a known associate of yours, Alexandra Biddle.

34One of those messages bearing the date 28 November, stated, ‘Alyce n Marie were looking for you last night, got a bit worried’. Another message at the same time stated, ‘alyce n marsey were trying to find you n lockie at 2am’. It is alleged that those messages referred to Alyce Hammel and the morning of the incident at 1A Rupert Street, Mitcham.

Indictment K13277544.2C

35In relation to the plea indictment the prosecution opening may be summarised as follows:

36At about 4:30 on the afternoon of 20 December 2019, a number of police officers were patrolling the Chirnside Park area in a large police van known as a ‘brawler van’.

37As they drove along the Maroondah Highway, the police saw a silver Mazda 3 travelling in the same direction, with you later identified as the driver. The car belonged to Robert Cicciarelli and was valued at $14,000.  It had been stolen from a business in Narre Warren on 13 December 2019. It is these facts that relate to Charge 4 – Theft of motor vehicle.

38As the police watched the car, it swerved erratically between other cars as it approached the intersection of the Maroondah Highway and Grandvalley Drive. You stopped at the intersection, then accelerated through the intersection and against a red arrow light that was illuminated and applicable to you. You turned right and collided with a white 2011 Renault van. It is these facts that relate to Charge 5 – reckless conduct endangering serious injury and Summary Charge 13 – drive whilst disqualified. The driver of the van was Thun Thian Langh Tau Nam and his passenger was Dong Lam Thuang Buan Sing.

39The force of the collision caused the Mazda to spin across the road and the Renault to move into other lanes of traffic. The brawler van drove towards the collision scene. You were seen by police to get out of the car and walk to the passenger side where you removed a bag. Given the haste at which you were moving, it appeared to the Police that you were contemplating leaving the scene. Moments later, you fled along Grandvalley Drive. It is these facts that relate to  Summary Charge 16 – fail to render assistance after an accident. As you ran, you dropped a black bag.

40Leading Senior Constable Harman drove the brawler van towards you as the police yelled at you to stop running. You decided not to comply with that direction and continued to run. Some of the police got out of the brawler van and chased you. Eventually, you arrived at a dead end near Country Club Drive and you were surrounded by police. Despite demands by the police that you get on the ground, you refused to do so. Consequently, you were physically put onto the ground by police and handcuffed. It is there facts that relate to Summary Charge 17 – resist emergency worker on duty.

41Police called an ambulance to assess you as a result of the collision. You were subsequently taken under police guard to the Royal Melbourne Hospital. You remained in the hospital overnight where you were treated for cracked ribs and a minor punctured lung. A blood sample taken from you was analysed and present in the sample was methylamphetamine. It is these facts that relate to Summary Charge 22 – drive under the influence of drugs.

42Mr Nam and Mr Sing were shaken but uninjured.

43Police ascertained at the scene that the silver Mazda had been stolen.  The Renault was extensively damaged and was towed from the scene.

44Upon searching the stolen Mazda, police discovered a number of items, including:

a.      a red ‘Culture Kings’ sports bag;

b.      a black ‘Adidas’ bag;

c.      two silver watches;

d.      two gold watches;

e.      a blue watch;

f.       a Garmin watch;

g.      two wifi rang extenders;

h.     a five port Gigabit;

i.        a 30 centimetre wooden handle knife. This knife is the subject of Summary Charge 20 – possess controlled weapon without excuse;

j.       a set of Mazda car keys;

k.      a set of Volvo car keys;

l.       a set of Nissan car keys;

m.     various keys including a set of keys;

n.     a pair of gold Ray Ban sunglasses;

o.      a set of knuckle dusters. This item is the subject of related Summary Charge 19 – possess prohibited weapon without exception/approval;

p.      a pair of black and red Versace sunglasses;

q.      a black leather satchel;

r.       a black Optus mobile telephone;

s.      cash in the amount of $351.15;

t.       a Medicare card in the name of Malcolm Clowes;

u.     a drivers licence in the name of Malcolm Clowes;

v.      an American Express card in the name of Malcolm Clowes;

w.     a black Westpac card in the name of Malcolm Clowes;

x.      a red Westpac card in the name of Malcolm Clowes;

y.      a gift card; and

z.      a glass breaker. This item is the subject of related Summary Charge 21 – going equipped to steal.

45Items c, d, e, f, j, k, l, m, s, t, u, v, w and x relate to Charge 6 on the second indictment – negligently deal with the proceeds of crime.

Nature and gravity of the offending

46Dealing first with the aggravated home invasion.

47Aggravated home invasion is an inherently serious offence, reflected in the maximum penalty of 25 years imprisonment together with the mandatory minimum non parole period of three years imposed by Parliament.

48Ms Brown, who appeared on your behalf at both the trial and plea hearings, sensibly conceded that your offending represents a serious example of the offence of aggravated home invasion. In assessing the gravity of the offending, Ms Brown accepted that the features of the offending are as follows: all three offenders carried offensive weapons; one of the weapons was a firearm; the offenders covered their faces; the home was deliberately, rather than randomly targeted; and the offenders gained entry to the home by kicking down the front door.

49Ms Brown referenced the decision of DPP v Wol[2] where the offending in that instance was not dissimilar. While some of the features of the offending in this case, as outlined above, form part of the elements of the offence and are thus not aggravating features, nonetheless, as the Court noted in Wol, the manner in which the offence was committed constituting aggravating features additional to the offence elements, justify the offending being described as a serious example of aggravated home invasion.[3]

[2] [2019] VSCA 286.

[3] Ibid at [59], [60].

50Mr Fisher who appeared on behalf of the Director of Public Prosecutions also submitted that the offending represents a serious example of the offence, highlighting the features noted above. Mr Fisher submitted that the graphic detail depicted in the CCTV footage demonstrates the terrifying and violent nature of the home invasion, committed in the middle of the night.

51While no victim impact statements were tendered, it is self evident that Mr Kummrow and more specifically, Ms Foxi would have been terrified when confronted by three masked and armed offenders who had entered the home after violently breaking through the front door in the middle of the night. The CCTV depicts one the offenders holding a knife toward Ms Foxi in a threatening manner. Ms Foxi has her hands up and she appears to be shaken by the confrontation.

52In all the circumstances I agree with the common position of the parties that this represents a serious example of the offence of aggravated home invasion.

53Turning to the offending relating to the second indictment.

54On 20 December 2019, you were observed by police in a stolen vehicle, driving erratically. You accelerated through an intersection against a red arrow resulting in a collision with another vehicle that contained two occupants. Once your vehicle came to rest you grabbed a bag and ran from the scene, dropping the bag as you ran. Police pursued you and you were arrested. You sustained injuries from the collision however the two persons in the other vehicle while shaken, were uninjured. Policed searched the stolen vehicle and found number of items that give rise to Charge 6 on the second indictment.

55Considering the totality of the offending that gives rise to the Charges on the second indictment, together with the related Summary Charges, your conduct can only be described as reckless, desperate behaviour. You were driving a stolen vehicle, you were disqualified from driving, you were under the influence of drugs and you clearly had no regard for the safety of other road users. Once apprehended you were found with stolen items and weapons. The reflected narrative, confirmed now by the material presented at the plea, is that you were living a life that was ruled by drugs and the need to fuel your long term drug addiction. However while your conduct is serious, I acknowledge that no other persons were injured as a result of your driving and the subsequent collision.

Personal circumstances

56You are currently 31 years of age. You grew up in the eastern suburbs of Melbourne, and your parents separated prior to your birth. You report a good relationship with both of your parents and your half-siblings, Brad and Alex. You have two other half-brothers you have no contact with. You have a two year old daughter with a former partner, and you are currently in a relationship.

57You recall your family life positively with your mother and her partner, ‘Ozzie’, but they separated when you were about nine years old. Your mother’s next partner, Robbie, was abusive towards you and your mother, and he and your mother both used drugs. You were sent to live with your aunt and her partner, and eventually returned to live with your mother. Your upbringing was clearly unstable and you were exposed to domestic violence at the hands of a step-father towards you and your mother. 

58You attended about 10 primary schools growing up and you describe your learning ability as ‘not very good’. You were bullied in primary school, and you would retaliate by fighting. You attended the Croydon Community School at a secondary level, and you left school before the end of Year 10. After leaving school you worked as a plasterer’s labourer for about three months, and then later as a plumber’s labourer for five months, the longest position you have held.

59You have maintained contact with your father however you report that he was in gaol for all of your childhood. You would visit him in gaol however you had limited contact with him when he was not in custody.

60Your father, Warren Brooks gave evidence at the plea. He confirmed his own difficult past life and accepted that this had an influence on you, stating in evidence that you ‘are a carbon copy’ of him. Mr Brooks gave evidence that he had a heroin addiction but has been clean for many years, and now works as a drug and alcohol outreach worker. Mr Brooks gave frank evidence and conveyed that he believes you are beginning to better appreciate what you need to do to make a change. He maintained that he will continue to offer you support while you are in custody and upon your release.

61As to your drug history, you report that you began smoking cannabis at the age of 12, and by age 17 you were smoking ‘two to three grams nearly every day’. You began using speed at 15 and then ice a year later. You report you were smoking up to two grams a day. You report you were an alcoholic in your mid-teenage years, but you have not touched alcohol since your release from prison in February 2019. However, you did use ice for about eight weeks after your 2019 release, and you were also using up to 60mls of GHB a day. You have also used cocaine, LSD and Ketamine intermittently.  You are prescribed methadone in custody.

62Ms Carla Lechner, clinical psychologist, prepared a psychological report dated 11 April 2022 which was tendered on the plea.  Ms Lechner further outlines your personal history and the findings of a mental state examination and interview of you on 7 April 2022. In Ms Lechner’s view you present with a Stimulant Use Disorder – in remission in a controlled environment, and unsurprisingly, that you would benefit from intensive alcohol and drug counselling upon your release from custody.

63You stated to Ms Lechner that you acknowledged your role in the offences and did not seek to shirk your responsibility. At the plea this was clarified to only be referring to the second indictment and you continue to maintain that you were not involved in the aggravated home invasion. However, in relation to the second indictment offending, Ms Lechner notes that you expressed shame and appropriate victim empathy. Further, in the opinion section of the report, Ms Lechner confirms that prior to this offending, you had relapsed into drug use after being released from prison and that you accept that drug use is closely associated with your offending behaviour generally both in terms of supporting your habit, and your poor judgement. Ms Lechner again stated that you indicated that you are sorry for the pain and distress you caused to the victim. Again, while it is unclear in the report, it must be assumed that as you continue to deny involvement in the home invasion, this can only be referable to the second indictment offending and the victims associated with that offending.

64You have an extensive and relevant prior criminal history. Of note are three appearances in this Court for which I have been provided the sentencing remarks. In 2009 at age 18, you were sentenced by Judge Nixon to 2 years and 6 months in a Youth Justice Centre in relation to two armed robberies. In his sentencing remarks, Judge Nixon refers to your criminal history from age 13 in the Children’s Court. In 2011 you were sentenced by Judge Gullaci to 4 years and 6 months on Charges of armed robbery and attempted theft. In 2013 you were sentenced by Judge Mason to 6 years  and 3 months on Charges of burglary, theft, armed robbery, intentionally causing injury, threat to kill, reckless conduct endangering serious injury and assault. In relation to that sentence you were paroled in 2016, however you breached parole and returned to prison until your release in February 2019.

Sentencing considerations

65Ms Brown highlighted a number of mattes to be taken in to account in mitigation. Turning first to your plea of guilty in relation to the second indictment. Your plea has significant utilitarian value, sparing the time and expense of a jury trial and saving witnesses from having to give evidence. The plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system.[4]

[4] Worboyes v The Queen [2021] VSCA 169 at [39].

66Further, as noted at the plea hearing and referred to by Ms Lechner, in relation to the second indictment I accept that you have expressed a degree of genuine remorse and demonstrated some victim empathy.

67Ms Brown submitted that your significantly deprived and dysfunctional childhood is able to be taken in to account in mitigation. You have only known a world of crime, drugs and violence from your early years. Your father who has now rehabilitated himself, was seriously involved in the drug world and spent significant periods of time in custody when you were a child. Your mother formed relationships with violent men and she too battled with drugs. A such it was submitted that your early experiences amount to profound deprivation enlivening the Bugmy[5] principles. As noted in Bugmy, the effects of profound deprivation do not diminish over time and I accept that full weight should be given to the effects of your deprivation in mitigation.

[5] Bugmy v R (2013) 249 CLR 571.

68It was submitted that as a large part of your teen and early adult years have been spent in custody, you are at risk of becoming institutionalised. As noted by Ms Lechner, you lack a range of adaptive coping skills and strategies and you have not had the opportunity to navigate many tasks that you would learn during adolescence such as identity formation and establishing a sense of belonging and future direction. I take these matters into account in consideration of your prosects of rehabilitation and the need for ongoing supervision upon your release.

69Turning more specifically to your prospects of rehabilitation, in 2013 Judge Mason assessed your prospects as ‘poor’. In 2011 Judge Gulllaci stated that your prospects ‘appear bleak’. Clearly those assessments have proven to be accurate. However as discussed at the plea, when consideration is given to the report of Ms Lechner together with the evidence of your father, in my view you are beginning to develop insight into the matters you need to confront in order to break the cycle of drug use and offending.  As such, your prospects have the potential to improve and in my view are not hopeless.

70It was submitted that consideration should be given to the sentence imposed on your co offender Lauchlan Bright. Mr Bright pleaded guilty to one Charge of aggravated home invasion and was sentenced to 5 years and 3 months with a non parole period of 3 years and 3 months. I have read the sentencing remarks of Judge Meredith and I take into account the principle of parity. The obvious difference between you and Mr Bright is that he pleaded guilty, and you have run a trial. Further, Mr Bright had a more limited criminal history and pleaded guilty to the offending during the time of the pandemic attracting the ‘Worboyes’[6] considerations. Further, in light of the plea material before him, Judge Meredith assessed Mr Bright’s prospects of rehabilitation as ‘cautiously optimistic’.

[6] [2021] VSCA 169.

71As you will be sentenced to a significant term of imprisonment in relation to the home invasion, Ms Brown submitted that there should be minimal cumulation in relation to the second indictment relying on the principle of totality, which I accept.

72Mr Fisher did not take issue with the matters put in mitigation, however highlighted the other sentencing principles that must be given weight. Deterrence, both general and specific, must loom large in the sentencing calculus. Denunciation of your conduct and protection of the community are also relevant sentencing considerations in this instance.

73Finally, I take into account that a large portion of the time you have spent on remand has been particularly onerous due to conditions in prisons arising from the COVID-19 pandemic. Prisoners have been subjected to lockdowns, quarantine periods and restrictions on personal visits, education and rehabilitative programs. While the circumstances have improved, the virus is still circulating and some restrictions remain in place within the prison community. I take these matters into account in relation to the time you have already served and the additional time you will be required to serve.

Sentence

74Mr Glowacki would you please stand.

75Robert Glowacki, in relation to the first indictment, on Charge 1,  aggravated home invasion, you are convicted and sentenced to 7 years imprisonment.

76In relation to the second indictment, On Charge 4, theft, you are convicted and sentenced to 6 months imprisonment. On Charge 5, conduct endangering persons you are convicted and sentenced to 12 months imprisonment. On Charge 6, negligently dealing with the proceeds of crime, you are convicted and sentenced to 6 months imprisonment.

77On Summary Charge 13, drive whilst disqualified, you are convicted and sentenced to 3 months imprisonment. On Summary Charge 16, failing to render assistance after an accident and Summary Charge 17, resist emergency worker on duty, you are convicted and sentenced to 14 days imprisonment on each charge. On Summary Charge 19, possess prohibited weapon without exemption or approval, Summary Charge 20, possess controlled weapon without lawful excuse, Summary Charge 21, going equipped to steal, and  Summary Charge 22, drive under the influence of drugs, you are convicted and sentenced to 1 month imprisonment on each Charge.

78In relation to the second indictment I direct that 2 months of the sentence of Charge 4 and 1 month of the sentence on Charge 6 be served cumulatively on each other and on Charge 5 making for an effective sentence on the second indictment of 15 months imprisonment.

79I further direct that 6 months of the sentence imposed on the second indictment be served cumulatively on Charge 1 on the first indictment making for a total effective sentence of 7 years and 6 months. I direct that you serve 5 years and 6 months before becoming eligible for parole.

80Pursuant to s 18 of the Sentencing Act 1991, I declare that 874 days be reckoned as the period of imprisonment already served under the sentence I have imposed.  That does not include today.

81Pursuant to s 6AAA of the Sentencing Act1991, in relation to the second indictment, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 2 years with a non-parole period of 18 months.  

82In relation to Summary Charge 22, any licence you hold is cancelled and you are disqualified from obtaining a licence  for a period of 4 years. In relation to Charge 5 on the second indictment any licence you hold is cancelled and you are disqualified from obtaining a licence for a period of 2 years.

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