Director of Public Prosecutions v Glowacki
[2013] VCC 1121
•26 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00851
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT GLOWACKI |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 May and 24 June 2013 | |
DATE OF SENTENCE: | 26 June 2013 | |
CASE MAY BE CITED AS: | DPP v. Glowacki | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1121 | |
REASONS FOR SENTENCE
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Subject:Trial - plea - sentencing
Catchwords: Burglary - theft - damaging property - armed robbery - intentionally cause injury - make threat to kill - reckless conduct endangering serious injury - common assault.
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Renzella [1997] 2 VR 88, R v Stares [2002] 4 VR 314
Sentence: 6 years and 3 months' imprisonment, minimum term 3 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L Bolkas | Office Of Public Prosecution |
| For the Accused at hearing For the Accused at sentence | Mr C. Nikakis Mr P. Tomlinson | Haines & Polites |
HIS HONOUR:
1 Robert Glowacki, on 23 April 2013 you pleaded guilty to one charge of each of burglary, theft and damaging property, and on 8 May 2013 you were found guilty by a jury verdict of three charges of theft and one charge each of armed robbery, intentionally cause injury, make threat to kill, reckless conduct endangering serious injury and common assault.
2 The maximum penalties for these offences are as follows:
· Theft: 10 years’ imprisonment
· Burglary: 10 years’ imprisonment
· Damaging Property: 10 years’ imprisonment
· Armed Robbery: 25 years’ imprisonment
· Intentionally Cause Injury: 10 years’ imprisonment
· Make Threat to Kill: 10 years’ imprisonment
· Reckless Conduct Endangering Serious Injury: 5 years’ imprisonment
· Common Assault: 5 years’ imprisonment
3 You were born on 11 August 1990 and were aged 20 at the time of offences. You are presently aged 22.
4 The offending for which you are being sentenced today relates to three separate incidents. The circumstances are as follows:
Incident 1 – 28 August 2010 – Fisher Rogers Used Cars, Upper Ferntree Gully.
5 At approximately 1 am on 28 August 2010 you and your co-offender Chase Clark attended Fisher Rogers Used Cars at 1278 Burwood Highway, Upper Ferntree Gully.
6 You and Clark forced entry into the office area. You went through desk drawers, a keyboard, a key safe and a filing cabinet and tipped the contents all over the floor. You forced open a safe, which was bolted to the floor, with an electric drill. Various other tools were removed from the kitchen and the garage and left in the office. This conduct constitutes Charge 1 - burglary.
7 You and Clark unlocked a Subaru Liberty wagon in the garage. You searched the car and left the tail gate open. You then stole a Mazda Astina by backing it out of the garage through the partially opened roller door and over a bollard. This caused extensive damage to both the roller door and the car. You also stole a Toyota Kluger and four or five other sets of keys belonging to cars in the yard. This conduct constitutes Charges 2, 3 and 4 - theft.
8 The manager of the car yard arrived at work at approximately 7.45 am and noticed the damage to the roller door of the garage. He noted that the door to the office was closed but there was damage to the lock on the door, and he was able to push the door open. There was also damage caused to some walls by a tomahawk which had been used and left in the office. This conduct constitutes Charge 5 - damaging property.
9 On 2 September 2010, a Mr William Botterill reported to police that the stolen Mazda Astina had been parked in Saxton Street, Box Hill for approximately five days. He noted that the car had a smashed rear window. The car was seized by police.
10 The stolen Toyota Kluger was used in a number of incidents in which you were involved over the following days.
Incident 2 – 28 August 2010 – Fantasy World, Wantirna South.
11 At approximately 10 pm, the manager of Fantasy World, Wantirna South, locked the front door of his business. The business had closed and the manager brought the till's float to $350 in preparation for the next day. The manager's partner was in the back office.
12 The manager had turned all the lights off when he heard a knock at the front door. He walked over towards the front door and heard a male voice say, "Can I get a bong." The manager replied, "Hang on" and opened the door. At first there was no-one there, but then you and two unidentified male co-offenders appeared at the door, one with a gun in hand which was pointed at the manager. Your group walked in through the door and the manager was told to "Get on the ground, get on the ground." All of you had your heads and faces covered.
13 The manager got down onto the ground and was surrounded by you three. The gun continued to be pointed at him. One of you asked where the safe was. He said it was in the office. One of you went to the counter and removed the entire till, which contained $140 in $20 notes, $100 in $10 notes, $45 in $5 notes and the rest in coins. There were also a number of pieces of paper and business cards in the till.
14 The manager then tried to get up and was kicked in the face, causing his mouth to bleed and swelling to his lip. This conduct constitutes Charge 7 - intentionally causing injury.
15 The manager's partner then looked out of the office door and one of your group went to the office where she was. She locked the door but she was told, "Open the fucking door. Open the door or I'll blow his fucking head off." This conduct constitutes Charge 9 - making a threat to kill.
16 The manager was told to get up and go into the office. His partner opened the door and you and your co-offenders pushed the manager into the room. The gun was still being pointed at him, then his partner was turned to and told, "Get in the fucking corner. Open the fucking safe." She replied, "I don't know how to open the safe." She saw that the manager had a swollen lip and blood coming down his chin and pleaded with all of you not to hurt him. One of you said, "I'm sorry. I'm sorry."
17 The manager opened the safe and the contents, approximately $200, were taken. The three of you then backed out of the office and out the front door. One of you said, "Don't ring the police or we'll be fucking back." This conduct constitutes Charge 6 - armed robbery.
18 The manager waited a short time and then went to look out the front door of the shop. He saw a silver four-wheel-drive out the front of his shop which then drove off. He described the car as looking new and noted that it appeared to be clean and tidy with shiny alloy wheels. It was alleged at trial that this was the Toyota Kluger which had been stolen by you earlier that day.
19 The incident was captured on closed circuit television cameras located at the store.
20 During the incident one of you was wearing a grey and black Mossimo hooded top with a motif on the front and on the left shoulder, dark denim jeans rolled up at the bottom, dark work boots and dark gloves. The items of clothing were similar to those you were wearing when you were intercepted and photographed by Leading Senior Constable Scanlon on 8 September 2010.
21 On 28 December 2010, the manager was shown photographs by the police of some items which were recovered from the stolen Toyota Kluger after the next incident, Incident 3, to which I will refer below, including an EFTPOS receipt, several business cards and a torn photograph. The manager identified these items as having been stolen from Fantasy World.
Incident 3 – 29 August 2010 – McDonalds, Oak Park.
22 At approximately 2.30 am on 29 August 2010 you were driving the stolen Kluger in Pascoe Vale Road, Oak Park. A car pulled up beside yours at the lights and one of your co-offenders asked if the other driver had any “ice”, meaning crystal methylamphetamine. The other driver, later identified as a Mr Spirkosky, acknowledged that he could obtain some and an arrangement was made to meet at a local McDonalds Restaurant car park.
23 The other driver returned and entered the back seat of your car and produced a bag, saying he had two bags of ice. He passed one bag to your co-offender seated in the front seat. Soon after, you produced a sawn-off .22 rifle and told the other driver to hand over the other bag. By this time both of you had got out of the car. You were aware that your co-offender still had the first bag. This conduct constitutes Charge 10 - theft.
24 You fired a round from the rifle, narrowly missing the feet of the other driver. This conduct constitutes Charge 11 - reckless conduct endangering serious injury.
25
The other driver, Mr Spirkosky, then approached you in order to take the rifle and you engaged in a wrestle. During the wrestle, two of your co-offenders threw cans and kicked at Mr Spirkosky. Mr Spirkosky eventually managed to wrest the rifle from you, take the keys from your car's ignition and walk away. You and your co-offenders also walked away. As a result of the assault,
Mr Spirkosky suffered soreness to arms and back, particularly down his right-hand side and grazes and bruising to the right-hand side of his back and to his head. This conduct constitutes Charge 12 - common assault.
26 On 11 November 2010, Mr Spirkosky handed the rifle over to police. He also viewed a number of photo boards and identified you, Mr Glowacki, as the driver of the Toyota Kluger.
27 The Toyota Kluger used in this incident is the same as that stolen from Fisher Rogers Quality Used Cars the previous day, referred to in Incident 1.
28 A trial before me commenced on 15 April 2013. Pre-trial discussions and the pre-trial application for severance of the initial indictment meant that a jury was not empanelled until 23 April 2013.
29
You pleaded guilty to Charges 1, 2 and 5 on the indictment before the jury panel on 23 April 2013, and on 8 May 2013 the jury returned verdicts of guilty on all of the remaining charges on the indictment. I note that a verdict was not taken on the alternative charge, Charge 8, of recklessly causing injury after you were found guilty of Charge 7, of intentionally causing injury.
30 I further note that you have been in custody on other matters throughout the period of this trial, so there are no days of pre-sentence detention to declare in respect of these matters.
31 I now turn to your personal circumstances.
32 As noted earlier, you were aged 20 at the time of the offences and you are now aged 22.
33 You have an extensive criminal history for one so young, with your first court appearance being at the Ringwood Children's Court in 2003 when you were 13 years old. There were 12 more appearances in that court over the next five years, after which you graduated to the Magistrates' Court - two appearances – and then, in 2009, to the County Court where, for two episodes of armed robbery at the age of 18, you received a 2½-year term of detention in a Youth Justice Centre from His Honour Judge Nixon, being a continuation of a sentence which you were already serving there for burglary and theft. At the time of that sentence Judge Nixon noted that you had at that time 12 court appearances where there were 52 convictions recorded, together with a further 72 offences where findings of guilt had been made and stated that he seriously questioned whether your prospects of rehabilitation were reasonable. You were just 19 when His Honour made those observations.
34 On 26 July 2011 you were sentenced by His Honour Judge Gullaci at this court on one charge of attempted theft and one charge of armed robbery to a head sentence of 4½ years' imprisonment with a minimum period of three years before being eligible for parole. I note that this is not a prior conviction for the purposes of this sentence.
35 You have experienced an unfortunately dysfunctional childhood, commencing with your current recollection being that your parents never actually lived together. You lived initially with your mother until age nine, when difficulties between the two of you deteriorated to the extent that you were moved to live with an uncle and aunt for two years. You and your mother had both experienced violence at the hands of your stepfather. Your mother also was experiencing problems through illicit drug use. Between the ages of 11 and 12 you were placed in some community residential care and returned to live with your mother at 13. It was about this time that you began your own history of drug taking, which escalated from cannabis to amphetamines and crystal methylamphetamine, otherwise known as “ice”. You attended multiple schools and eventually left after Year 10.
36 Your employment history has been limited to occasional work as a labourer and assistant plasterer, and your longest term of employment has been approximately four months.
37 Of great concern is the nature and early repetition of your re-offending after release from custody.
38 The more recent offending consists of one count of armed robbery in May 2008, two counts of armed robbery in January 2009, one count of robbery in June 2009, two counts of armed robbery in September 2009. You were released on youth parole on 21 June 2010 and committed the current offences on 28 and 29 August 2010, then a further two counts of armed robbery and one count of attempted theft on 12 September 2010. The September 2010 offences were the subject of the aforementioned sentence of Judge Gullaci on 26 July 2011.
39
At your plea, the prosecution submitted that the appropriate sentencing range was a total effective sentence of six to eight years' imprisonment with a minimum term of between four and 5½ years' imprisonment before eligibility for parole. That term anticipated the consideration of the current term being served and the fixing of a new non-parole period.
40 Your counsel submitted that after consideration was given to the mitigating circumstances and the fact that the current offending was part of a series of offences of the same or similar character as the September 2010 offences, the prosecution range would amount to a manifestly excessive total effective sentence. It was submitted that the great delay in the current charges not coming before this court until April of this year has resulted in further hardship than would otherwise have been the case had there been a more timely completion of the investigation and hearing.
41 Your offending is obviously very serious. It involved a repetition of offending over a very short period of time. Armed robbery, in particular, is one of the most serious of offences and the use of a firearm increases the potential for serious injury or death and adds to the terror of victims. The threat to kill, in the circumstances of pointing the rifle during the already existing terror of an armed robbery, increases the anxiety and fear of the victims. You were disguised at the armed robbery, and the subject premises involved what is often referred to as a "soft target." It is likely that the burglary and theft of the motor vehicles was designed with the intention for use in the subsequent armed robbery. The motivation for all the offending appears to be to obtain money for the purpose of satisfying your need for drugs. The use this time of a sawn-off rifle capable of being discharged at the armed robbery and the subsequent discharge at the time of the McDonalds theft later that same night represents an escalation of the circumstances of this type of offending by you. It was a dangerous and disturbing advance and, furthermore, you were on youth parole at the time.
42 Principles of denunciation, general and specific deterrence and the protection of the public should be given significant weight.
43 Your prospects of rehabilitation must be regarded as poor.
44 The two victim impact statements provide stark and eloquent testimony to the effects of the type of violence in which you engaged during the armed robbery.
45 In mitigation, I take into account the matters urged upon me by your counsel and in particular your age and unfortunate early development. You were a young offender at the time of the commission of the offences and you remain a youthful offender now at the time of sentencing. Your development history has informed your regular cycle of drug use. You have now completed an extensive time in adult prison and for the first time, and both your mother and biological father have provided support for you.
46 I also take into account your pleas of guilty to Charge 1 of burglary, Charge 2 of the theft of the Astina and Charge 5 of damaging property.
47 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
48 Balancing the various sentencing considerations, in particular, matters set out in Part 2 of the Sentencing Act 1991, I am first satisfied that the purposes for which the sentence is imposed cannot be achieved without a sentence of imprisonment.
49 I have also considered any disadvantage to you because of the time lapse in these matters coming to conclusion. You were first placed in remand custody for the September 2010 offences on 12 September 2010, and not sentenced until 26 June 2011. The current offending took place approximately two weeks before that September 2010 offending. Your counsel quite reasonably submitted that the current offending formed part of a pattern of offending at the same period as the September 2010 offences. He made the further submission that the prosecution of the current matters was untimely and has led to your disadvantage.
50 Mr Spirkosky, an important witness and victim of the McDonalds incident, had made his statement and delivered the subject rifle to police by November 2010. You were not charged however with these offences until 25 August 2011. The first filing hearing was on 14 September 2011, the prosecution brief was served on 26 October 2011 and a contested committal took place on 24 and 25 May 2012.
51 I accept that a delay of 12 months before the laying of charges appears extreme, however the investigation into these matters involved a complex cross-referencing and gathering of evidence from a variety of instances of alleged thefts and armed robberies and it is reasonable to expect that a longer than usual time would be required before the laying of charges. The original indictment and prosecution brief before the court at the start of this trial included charges also against a co-accused, as well as three further and separate instances of similar armed robberies on different venues.
52 It was only after submissions and a ruling on the severance of those further allegations that the trial for the current offences commenced. All the original allegations were served on you in August 2011 and you have exercised your undoubted right to challenge those allegations. The overwhelming likelihood is that even had the current brief been able to be served a little over a month earlier, that is by the date of your hearing on the September 2010 offences, the current matters would not have been included because you were pleading not guilty. Thereafter, the periods to committal and trial are within standard court timetables, regrettable though that time period for contested hearings may be.
53 Consequently, the period of pre-trial detention of 317 days before your July 2011 sentence could only be considered in the context of that sentence.
54 Notwithstanding that, you have also been in remand custody on these charges from when you were committed for trial, 25 May 2012, to today. During that period you have also been serving your sentence on the September 2010 offences. I have been told that since you were also on remand for the current offending, Corrections Services have not made available to you the reformative programs which you would otherwise have had in mainstream custody. I accept that adopting the principles discussed in authorities of the Supreme Court in Renzella[1] and Stares[2] some time ought to be taken into account for that time served by a reduction in the sentences imposed.
[1]R v Renzella [1997] 2 VR 88
[2]R v Stares [2002] 4 VR 314
55 I have also considered the issue of parity on the offences you have committed together with Mr Clark, and conclude that because of your similar ages, background and circumstances of offending, there is no basis for differentiating on penalty.
56 You are also currently still serving the sentence imposed by His Honour Judge Gullaci and the minimum date before eligibility for parole is 11 September this year. Accordingly, pursuant to s.14 of the Sentencing Act 1991, in sentencing you for these offences I must fix a new single non-parole period in respect of all the sentences you are to serve within the application of the principles of totality.
57 In view of your youth, the fact that these offences occurred very close in time to the offences for which you were sentenced by His Honour Judge Gullaci and in order not to discourage your remaining prospects of rehabilitation, I have imposed a shorter non-parole period than I otherwise would have.
58 On Charge 1, burglary, to which you pleaded guilty, you are convicted and sentenced to 12 months' imprisonment.
59 On Charge 2, theft, to which you pleaded guilty, you are convicted and sentenced to 12 months' imprisonment.
60 On Charge 3, theft of the Kluger, you are convicted and sentenced to 18 months' imprisonment.
61 On Charge 4, theft of the keys, you are convicted and sentenced to four months' imprisonment.
62 On Charge 5, damaging property, to which you pleaded guilty, you are convicted and sentenced to two months' imprisonment.
63 On Charge 6, armed robbery, you are convicted and sentenced to four years' imprisonment.
64
On Charge 7, intentionally cause injury, you are convicted and sentenced to
12 months' imprisonment.
65 On Charge 9, making a threat to kill, you are convicted and sentenced to six months' imprisonment.
66 On Charge 10, theft of the “ice”, you are convicted and sentenced to 12 months' imprisonment.
67 On Charge 11, reckless conduct endangering serious injury, you are convicted and sentenced to 12 months' imprisonment.
68 On Charge 12, common assault, you are convicted and sentenced to four months' imprisonment.
69 Charge 6 is the base sentence. I direct that:
2 months of the sentence imposed on Charge 1,
2 months of the sentence imposed on Charge 2,
6 months of the sentence imposed on Charge 3,
1 month of the sentence imposed on Charge 5,
3 months of the sentence imposed on Charge 7,
3 months of the sentence imposed on Charge 9,
4 months of the sentence imposed on Charge 10, and
6 months of the sentence imposed on Charge 11
be served cumulatively on the sentence imposed on Charge 6 and on each other. The sentences are otherwise concurrent.
70 The total effective sentence is six years and three months' imprisonment.
71 I further direct you serve a minimum term of three years and six months' imprisonment before being eligible for parole.
72 With respect to Charges 1, 2 and 5 on the indictment, pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the individual sentences that would have been imposed on these charges are:
- Charge 1: 18 months’ imprisonment with a non-parole period of 12 months.
- Charge 2: 18 months’ imprisonment with a non-parole period of 12 months.
- Charge 5: 3 months’ imprisonment.
73 At the plea hearing the Crown sought forfeiture and disposal orders which were not opposed with respect to the gun, ammunition and other items associated with the offending and I have made those orders today.
74 The Crown also sought a compensation order with respect to the armed robbery at Fantasy World in the sum of $692.62, which again you did not oppose and I have also made that order today.
75 (Forfeiture order signed.)
76 (Disposal order signed.)
77 (Compensation order signed.)
78 Is there anything else from either counsel?
79 MS BOLKAS: Just, Your Honour, in relation to the outstanding sentence - period of the sentence that Mr Glowacki is serving, I am not sure if Your Honour has specified - Your Honour has not specified whether that is to be taken into account.
80 HIS HONOUR: Yes I have.
81 MS BOLKAS: You have?
82 HIS HONOUR: Pursuant to s.14, I have considered the sentence currently being served and I have indicated that in consideration of that and applying the principles of totality, I have considered that in the context of fixing a new non-parole period.
83 MS BOLKAS: Yes, Your Honour.
84 HIS HONOUR: Which is three years and six months and I have explained why I have done that. Anything else?
85 MR TOMLINSON: Nothing further.
86 HIS HONOUR: All right. Thank you.
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