Director of Public Prosecutions v Kostrzewa

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR 17-01313

DIRECTOR OF PUBLIC PROSECUTIONS

MICHAEL KOSTRZEWA

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April, 1, 2 May 2018 (Trial) 3 May 2018 (Plea)
DATE OF SENTENCE:	11 May 2018
CASE MAY BE CITED AS:	DPP v Kostrzewa
MEDIUM NEUTRAL CITATION:	[2018] VCC 690

REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J Fallar	OPP
For the Accused	Mr C Hooper	Richard Revill Lawyers

Pages 1 - 13

HIS HONOUR:

Introduction

Michael Kostrzewa, on Indictment G13472782A.1 you have pleaded guilty to one charge of theft contrary to s 74(1) of the Crimes Act 1958 (Charge 2) which carries a maximum penalty of 10 years imprisonment and one charge of damaging property contrary to s 197(1) of the Crimes Act 1958 (Charge 3) which also carries a maximum penalty of 10 years imprisonment. The indictment originally included a charge of armed robbery (Charge 1). A jury acquitted you of that charge.
On Indictment G13472782B.1 you have pleaded guilty to two charges of theft contrary to s 74(1) of the Crimes Act 1958 (Charges 1 and 2) and one charge of possession of a drug of dependence (cannabis L) contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1991 (Charge 3), which in this instance carries a maximum penalty of 1 year imprisonment.
You have also pleaded guilty to 3 related summary charges:
· Charge 2 - possessing a prohibited weapon without exemption contrary to s 5AA of the Control of Weapons Act 1990, which carries a maximum penalty of 240 penalty units or 2 years imprisonment; and
· Charges 7 and 8 - unlawful assault contrary to s 23 of the Summary Offences Act 1966, which carries a maximum penalty of 15 penalty units or 3 months imprisonment.
You have also admitted your prior criminal record.

Circumstances of the offending

A prosecution opening was tendered on the plea incorporating the facts relating to both indictments and may be summarised in chronological order as follows:

Indictment G13472782B.1

On 7 December 2016, Hi Lay Kung, aged 62, was working alone in the family business at Paris Jewellery situated at Westville Shopping Centre, 62 Nicholson Street, Footscray. At approximately 3.15 pm you attended the store. There were no other customers inside. You said you were looking to buy something and wanted to see the chains. Ms Kung unlocked the cabinet and took out a tray containing a variety of gold chains. While you were touching one of the chains you asked if it was the biggest chain that she had. Ms Kung tried to touch the tray in order to take out one of the chains and show you however you hit her hand away. She then attempted to get the tray away from you. You then picked up the tray. You unzipped your jacket and placed the whole tray with the jewellery inside the jacket and walked out the front door.
Ms Kung was so worried and panicked that she did not press the emergency alarm. She felt helpless and screamed for help. The value of the stolen chains was $4,173.65. It is this conduct that relates to charge 1 - theft.
On 8 December 2016, Ricky McAndrew was working with his partner Westaphu Promrhaj at McAndrew Jewellery situated at 316 Little Collins Street, Melbourne. At approximately 5.15 pm, Mr McAndrew and Mr Promrhaj were looking after two customers when you walked inside the store. You waited for a few minutes and looked around the store before standing in front of the diamond rings cabinet. Mr Promrhaj kept an eye on you. Mr McAndrew went to serve you and you asked to look at a ring. He unlocked the upright glass cabinet display to take out one ring. You slid open the cabinet to the left, reached in and took two rings out brushing past Mr McAndrew in the process.
Mr Promrhaj observed this and knew something was wrong. Mr McAndrew signalled Mr Promrhaj who left the customers he was serving and positioned himself towards the front door. Mr McAndrew asked you to give back the rings. You refused. Mr Promrhaj also asked you to give the rings back. You resisted, so Mr McAndrew went to lock the door. Both men continued to ask for the rings back and you still resisted. You then returned one ring by placing it on the shop counter and put the other two rings into your pocket which was observed by Mr Promrhaj who then asked one of the customers to call the police.
Both men who were smaller in size and build to you attempted to get the rings back from you but you resisted. A scuffle took place and there was a struggle to keep the door closed however you managed to open it and in the process assaulted both men as you overpowered them and fled. Mr McAndrew managed to hit you with a metal ring sizer in an attempt to stop you with no effect. The value of the two rings was $9,450. This conduct relates to charge 2 on the indictment - theft, and summary charges 7 and 8 - unlawful assault of Mr McAndrew and Mr Promrhaj.
Indictment G13472782A.1
On 12 December 2016, the victim in this matter, Khan Nhu Nguyen an elderly woman, was working with her daughter-in-law My-Linh Huynh, at their jewellery shop Cong Thanh Jewellery at Shop 16, 62 Nicholson Street, Footscray which is part of the Westfield Shopping Centre. Ms Nguyen was at the back of the store speaking with a jewellery wholesale supplier while Ms Huynh was standing at the store's entrance when at approximately 10.30 am you entered the store. You began to survey the jewellery in the glass cabinet display. Ms Huynh thought you looked suspicious and called out to Ms Nguyen in Vietnamese to come into the store and to be careful.
Ms Nguyen came out to the store and asked you what you wanted. She observed that you had a cut at the top of your nose which was bleeding. You then said in an angry voice to Ms Nguyen to open the cabinet and to show you the biggest chain. Ms Nguyen was scared and stepped back away from the counter. She said to Ms Huynh to call security. She also made up a story and told you her daughter had the keys to the cabinet and she would not be back for half an hour. You responded in a loud voice ‘half an hour?’ and then immediately pulled from under your clothing an item which was an extendable baton. You then proceeded to smash the glass cabinet containing the jewellery. Your actions are clearly captured on the store’s CCTV. It is this conduct that gives rise to summary charge 2 - possession of a prohibited weapon and charge 3 on the indictment - criminal damage.
As soon as you had broken the glass cabinet you picked up three trays containing gold jewellery from within the cabinet. Ms Nguyen went around the counter and yelled out ‘Robbers, robbers’. As you fled you left one tray behind which contained the least amount of jewellery. Ms Huynh pressed the alarm buzzer. The value of the jewellery that was stolen on this occasion was $275,000. It is this conduct that relates to charge 2 on the indictment - theft.
The cleaner at the shopping centre, Vinh Nguyen heard the pleas for help. He saw you running with the trays of jewellery through the automatic doors at the exit of the shopping centre. As you ran some of the jewellery fell to the ground which you picked up. Mr Nguyen chased you with a cleaning mop. Another witness who was standing on the corner of Dennis and Nicholson Street, Footscray saw you running towards her. As you ran passed her she saw you holding the trays of jewellery and she also saw Mr Nguyen chasing you with the mop. Ultimately Mr Nguyen saw you kneel down between two cars. He approached you after you had placed the jewellery trays on the ground. Mr Nguyen came around the back of the cars and hit you on the head with the mop. You took some jewellery from the trays and then ran. Mr Nguyen took possession of the trays.
CCTV footage taken from various locations within the shop and from street cameras demonstrate your actions within the shop and your subsequent escape corroborating witness observations.
On 20 December 2016, following an investigation, you were arrested and interviewed in relation to the three incidents of 7, 8 and 12 December 2016. You denied your involvement in all three offences.
During the search of your premises at 216 Brigg Street, St Albans, police discovered various amounts of cannabis with a combined weight of 358 grams which falls within the trafficable quantity of cannabis. However, the prosecution does not allege trafficking activities were related to your possession of the cannabis. These facts relate to charge 3 on the indictment - possession of a drug of dependence.

Objective seriousness of the offence

In relation to the offences of 12 December 2016 involving Cong Thanh Jewellery, in my view in all the circumstances, this is a serious example of theft. You entered the store with an intention to steal and had with you a weapon which ultimately you used to accomplish the theft. The two female attendants were put in fear by the way you spoke and behaved. Ms Nguyen was an elderly woman who attempted to protect her property by not complying with your request to show jewellery to you at which point you pulled out an extendable baton from your clothing and smashed a glass cabinet right in front of her before taking the trays of jewellery. On any view this would have been a frightening experience for Ms Nguyen and her daughter-in-law Miss Huynh.
As to the circumstances that give rise to the offences that occurred at McAndrew Jewellery, in my view that would also have been a frightening experience for the two attendants that you confronted. Your brazen approach when stealing the rings resulted in a physical scuffle between the two attendants of the store. Like the victims involved in the Cong Thanh Jewellery incident, these two victims were simply going about their business in their store when you confronted them in the way you did. As such, in my view this theft is also a serious example of theft from a shop.
In relation to the Paris Jewellery incident on 7 December 2016, while that particular case may not be viewed as seriously as the Cong Thanh Jewellery and McAndrew Jewellery incidents, the victim in that case was aged 62 and was working alone in her store, a family business. She tried to resist you when you were taking the chains but you persisted hitting her hand away and then taking a whole tray of jewellery. Therefore, in my view, this case is more than simply a shop theft and involved confrontation with a victim who was simply working in her business and was alone.

Victim impact statements

The two victims of Cong Thanh Jewellery, Khanh Nguyen and My-Linh Huynh prepared victim impact statements that were tendered on the plea. Understandably in Ms Nguyen's case she says her health has deteriorated as a result of the trauma of the incident. She has nightmares and relives constantly what occurred. She says that even now at the shop she is in constant fear that this will happen again and lives with that anxiety. She highlights the fact that you were so close to her when you struck the glass and that she keeps reliving that scene. Ms Huynh is also more fearful when working in the shop. She worries that someone will follow her and that someone will rob the shop again. She says that she could not eat or sleep for a very long time and that this is the worst thing she has been through in her life.
Mr Promrhaj from McAndrew Jewellery also prepared a victim impact statement. He says that since the robbery at McAndrew Jewellery store his life has completely changed. He says the matter has traumatised him, that he does not socialise anymore and that he has lost confidence that he once had. Sadly, he says that the decision has been made to close the shop as a direct result of the ‘robbery’ and the associated trauma.

Personal circumstances

I was not told a great deal about your personal history. You are 37 years of age. Your father died in 1991. You did not finish school and I was told you have a poor work history. Your criminal record demonstrates that you have been involved in the criminal justice system since your first appearance in court in 1998 when you were in your late teens. What then follows is a continual interaction with the criminal justice system involving offences relevant to the offences I am dealing with today and has involved numerous attempts at community based dispositions and periods of custody.
Your mother and step-father were in court for your plea. They continue to offer you support although your mother suffers from a serious illness and other than moral support, understandably cannot offer much more.
As is reflected in your criminal history, you have had a battle with drugs since age 16. At the time of these offences you were using ice and it is clear that your motivation for committing the offences was as a result of your drug addiction.
Prior to these offences being committed you were in custody in relation to other matters and released in November 2016. As such you were only out of custody for a few weeks before you committed these offences. You have been in custody since your arrest on 20 December 2016.
While in custody you have attempted to involve yourself in various programs and courses. Certificates were tendered on the plea in relation to the courses you have undertaken however it is clear that you would benefit from further, more intensive rehabilitation programs to adequately address your drug problems. During the current period on remand, your mother and stepfather paid privately for you to be assessed for an in house rehabilitation program as part of a bail application. While you did not get bail, it was submitted that your cooperation, suitability and willingness to participate in a residential rehabilitation program demonstrates that you have some prospects of rehabilitation.
As was discussed at the plea, a person of your age with your criminal history, suggests that your options are clear. You either cease using drugs that lead you into further criminality, or you will inevitably return to prison. Further, if you continue to use drugs in the way that you do, you risk seriously jeopardising your health and ultimately, your life.

Sentencing considerations

Of the charges to which you have pleaded guilty on the two indictments, you had communicated your offer to plead guilty to those charges in early 2017 (save for the summary charge of being in possession of a prohibited weapon). The prosecution persisted with the charge of armed robbery in relation to the Cong Thanh Jewellery incident and it is on that matter that you ran a trial. You were ultimately acquitted of that charge. As such, the plea of guilty in relation to the charges on the two indictments can still be considered as an early plea.
It was submitted on behalf of the Director of Public Prosecutions that general deterrence, denunciation of your conduct and protection of the community are important considerations. In your case, specific deterrence also must loom large in the sentencing discretion. That is so because you were only just released from custody when you committed these offences. You also have an extensive criminal history and further, these offences breach a community correction order that you were given on a previous occasion.
As to your prospects of rehabilitation, on any view they are not good. As already noted, you have an extensive criminal history and despite many attempts at therapeutic orders included in community based dispositions, you continue to reoffend and continue to struggle with the difficulties you have faced for many years. I accept that you have a willingness to turn your life around as demonstrated by your acceptance into a drug rehabilitation program however, in my view you require an extended period of rehabilitation and support which I hope you will receive upon your release on parole.
Since your arrest on 20 December 2016 you have remained in custody. As such, you have now been in custody for some 507 days not including today. However on 11 December 2017 you were sentenced for a separate charge of robbery the commission of which occurred before you committed these offences. On that date you were sentenced to 7 months imprisonment with 45 days being reckoned as served pursuant to section 18 of the Sentencing Act 1991. That figure was arrived at because your bail in relation to that matter was revoked at an earlier date. In any event the section 18 time that may be declared as served is agreed at 194 days.
Mr Hooper who appeared on your behalf sought to rely on the decision of Younger v The Queen,[1] where it appears that the court found that presentence detention is not confined to periods where the offender is in custody only because of the offence for which presentence detention is being calculated. In that case a period of six months was imposed on the appellant for an unrelated offence. The Court found that the entire period the appellant spent in custody counted as presentence detention notwithstanding the fact that some of it was served concurrently with another sentence.
[1] [2017] VSCA 199, [68]-[70].
Younger however is unique and may be distinguished in my view from settled authority. In R v Broad[2] the Court held that a period spent on remand for one offence could not be taken into account as presentence detention pursuant to section 18 in relation to that offence if the offender was serving a sentence for another offence at the same time.
[2] [1999] 3 VR 31.
More recently, in Lord v The Queen[3] the Court of Appeal confirmed the position as stated in Broad. In Lord the appellant was in custody for 447 days. During that period he served sentences for unrelated offending. The Court accepted the trial judge properly declared 285 days under section 18, being the time on remand, and regarded the remainder of the time as ‘Renzella time’.
[3] [2017] VSCA 29, [33].
It appears that Younger is unique and may be distinguished on the basis that the only authority cited in Younger in support of paragraphs 68 to 70 was the case of DPP v TY [No 2].[4] Like Younger, TY concerned a period in custody for a sentence pending appeal and re-sentencing in the Court of Appeal. Both Younger and TY seem to apply an exception to the established principle relating to ‘Renzella time’, where the accused were resentenced by the Court of Appeal, the original sentence having been quashed.
[4] (2009) 24 VR 705, [39].
In my view you are not entitled to have formally declared the whole of the 507 days you have been in custody pursuant to section 18 of the Sentencing Act. Rather, you are entitled to a declaration of 196 days. Nonetheless, in my view the fact remains that you have indeed been in custody for a continuous period of 507 days and I take that time into account as ‘Renzella time’ which was the alternative submission made by Mr Hooper on your behalf as to how the court should take into account your time in custody.

Sentence

Mr Kostrzewa please stand.
On Indictment G13472782A.1, the Cong Than Jewellery incident, you will be sentenced as follows:
On charge 2, theft, you are convicted and sentenced to 2 years imprisonment. This will be the base sentence. On charge 3, criminal damage, you are convicted and sentenced to 1 year imprisonment.
On indictment G13472782B.1, the Paris Jewellery and McAndrew Jewellery incidents and the charge of possession of a drug of dependence, you will be sentenced as follows:
On charge 1, theft, you will be convicted and sentenced to 18 months imprisonment. On charge 2, theft, you will be convicted and sentenced to 18 months imprisonment. On charge 3, possession of a drug of dependence, you will be convicted and sentenced to 3 months imprisonment.
In relation to summary charge 2 - possessing a prohibited weapon without exemption, you are convicted and sentenced to 2 months imprisonment.

In relation to the summary charges 7 and 8 - unlawful assault, you are convicted and sentenced to 1 month imprisonment on each charge.
I direct that 6 months of the sentence on charge 3 of indictment G13472782A.1 and 3 months of the sentences on charges 1 and 2 of indictment G13472782B.1 be cumulative on each other and on charge 2 (the base sentence). That makes for a total effective sentence of 3 years imprisonment.
The sentences on the remaining charges are to be served concurrently on the other sentences I have imposed. I direct that you serve 2 years imprisonment before becoming eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 196 be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 4 years imprisonment with a non-parole period of 3 years imprisonment.

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[2018] VCC 690

11 May 2018