Director of Public Prosecutions v Kowalski
[2023] VCC 385
•8 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00495
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Krzysztof KOWALSKI |
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JUDGE: | Her Honour Judge Ellis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 January & 3 February 2023 | |
DATE OF SENTENCE: | 8 March 2023 | |
CASE MAY BE CITED AS: | DPP v Kowalski | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 385 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: One charge of burglary- one charge of theft of a firearm- one summary charge of committing an indictable offence on bail- plea of guilty- following sentence indication- relevant prior criminal history.
Legislation Cited: Criminal Procedure Act 2009 (Vic), Crimes Act 1958 (Vic) , Bail Act 1977 (Vic), Firearms Act 1996 (Vic)
Cases Cited:Akoka v The Queen [2017] VSCA 214, Worboyes v The Queen [2021] VSCA 169
Sentence: 296 days imprisonment with an 18 month CCO. Fined $300.
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APPEARANCES: | Counsel | Solicitors |
For the DPP | Ms. C Paganis | Office of Public Prosecutions |
For the Accused | Mr. A Patton | Theo Magazis & Associates |
HER HONOUR:
1Krzysztof Kowalski, on 30 January 2023 after receiving submissions at an earlier hearing, I granted your application for a sentence indication. I indicated that, should you plead guilty to burglary and theft of a firearm, then pursuant to s207(1)(a) of the Criminal Procedure Act 2009 I would impose a sentence of a specified type, that being a combination of a custodial and non-custodial sentence with no immediate term of imprisonment. You then pleaded guilty on arraignment.
2Mr Kowalski, you have pleaded guilty to:
· one charge of burglary contrary to s76 of the Crimes Act 1958 which carries a maximum penalty of 10 years' imprisonment;
· one charge of theft of a firearm contrary to s74AA(1) of the Crimes Act 1958 which carries a maximum penalty of 15 years' imprisonment; and
· one summary charge of committing an indictable offence whilst on bail contrary to s30B of the Bail Act 1977 which carries a maximum penalty of 30 penalty units or three months' imprisonment.
3Charge 2 is a rolled up charge.
Circumstances of Offending
4The circumstances of your offending are set out in the summary of prosecution opening tendered on the plea as Exhibit A. The victims in this matter are
Peter Marouthras and Nickolas Marouthras. Both victims were holders of a Firearms Licence under the Firearms Act 1996. Peter Marouthras owned two firearms that are registered in his name. Nicholas Marouthras owned one firearm registered in his name. The three firearms were stored in a firearm's safe in the garage of Peter Marouthras' residence in Keilor Park.5In the days leading up to the offending you cased the Keilor Park residence. In the evening of 17 December 2019 you attended the community centre car park located at the end of the street. Peter Marouthras observed that you were seated in the passenger seat of a silver coloured Land Rover Discovery and were wearing a head torch. You exited the vehicle and walked into the driveway of the premises where you began clearing debris from the driveway. You then returned to the vehicle and drove away.
6Two days later, at approximately 5.30am on 19 December 2019, you re-attended the street in the same Land Rover. You were again observed in the community centre car park wearing a head torch. At 11.14pm that night you were captured on CCTV footage driving slowly past the victim's residence before attending the community centre car park at 11.21pm.
7You then reversed the Land Rover into the driveway of the premises. At 11.27pm a light was captured on CCTV which illuminated you walking around the vicinity of the victim’s premises. At 11.38pm you were captured on CCTV walking up and down the court then entering the front yard of a neighbouring property, before leaving on foot at 11.46 pm.
8At 2.14am on 20 December 2019, you returned to the premises and were carrying a box. You gained access to the garage of the property by jumping a side fence and entering through a side pedestrian door and into the garage (Charge 1: Burglary).
9After two minutes you reappeared carrying a crowbar and a box of miscellaneous items. You were captured on CCTV footage dropping the box outside a neighbouring property, before walking back towards number 2. You then moved the Land Rover and parked the vehicle out the front of the residence. You then made several trips between the premises and the Land Rover.
10At 2.38am, CCTV depicts you approaching the Land Rover and disappearing behind it. A surrounding light was switched on, which illuminated through the rear windscreen of the vehicle. At 2.39am, the light turned off and you were then captured on CCTV returning on foot to the property. You re-appeared at 2.58am, running back towards the Land Rover from the residence. A light was again switched on and you stayed behind the vehicle. At 3.02am, you were captured getting into the vehicle and then driving away from the location.
11The following morning Peter Marouthras woke to find that firearms had been taken from the locked safe. You gained access to the safe using the victim's hand tools. The following firearms had been taken:
·Silver Pigeon Beretta 12g shotgun – 1J05192S/E10323
·Akkar Churchill 12g shotgun – 16314053/E11261; and
·Bettinsoli silver 12g shotgun – 254343/E7203 (Charge 2: Theft of Firearms - rolled up charge).
12On 20 December 2019, Crime Scene Services officers attended the residence and took photographs and obtained DNA swabs of the head torch left by you in the driveway of the residence. The swabs were examined, which determined that the trace of the DNA obtained from the head torch was from a single source and 100 billion times more likely to belong to you than anyone else.
13On 27 December 2019, you were intercepted whilst driving a silver-coloured Land Rover in Preston. The vehicle you were driving at the time of the intercept was later revealed to be the same make and model and fitted with identical roof racks to the vehicle depicted in the CCTV in relation to this offending.
14After being intercepted you were arrested and taken to Preston Police Station for questioning. You declined to be interviewed. At the time of this offending you were on bail.
Procedural History
15You were charged on the day of your arrest, namely 27 December 2019. You were remanded into custody. You were first granted bail in this matter on 13 March 2020. Whilst on bail, you were arrested on subsequent offending. You spent periods in custody and bail was later revoked in this matter. You made an application for bail, which was granted on 22 February 2022.
16I note that a contested committal hearing took place on 9 March 2021. The victims were cross-examined. You made an application for a sentence indication hearing on 31 May 2022, which was subsequently adjourned to monitor your progress at residential rehabilitation. The sentence indication was given on 30 January 2023, at which point your counsel indicated the matter would resolve on the basis of the indication given and that you would enter a plea of guilty. A plea hearing was then heard on 30 January and 3 February 2023.
17You have spent 296 days in custody in relation to this offending.
Victim Impact Statement
18No victim impact statements were tendered on the plea.
Prior Criminal History
19You have admitted a prior criminal history dating back to 2004. That criminal history largely reflects an ongoing struggle with drugs, though I note you have prior convictions for dishonesty offences, such as theft and deal with property suspected of being proceeds of crime, and also numerous driving related matters. There have also been breaches of family violence intervention orders. You have been placed on numerous community correction orders, however, with the exception of that imposed in 2004, you did not complete those orders and were frequently brought back to court with respect to breaches.
20At the time of this offending you were on a community correction order which had been imposed on 7 February 2019. This order required you to undergo assessment and treatment for drug abuse or dependency and rehabilitation as well as to engage in programs designed to reduce reoffending. According to a report from February 2020, your attendance with supervision was poor and you failed to undertake urine screens as directed. You accrued numerous unacceptable absences. You were then placed on a further community correction order at the Sunshine Magistrates' Court on 10 March 2020, and again failed to comply in that you did not engage with the programs as directed and you were verbally abusive to Corrections staff. It is an aggravating feature of this offending that you were on a Community Correction Order at the time.
Personal Circumstances
21You are now 37 years old. You were born in Poland where you resided with your family until the age of 4, before migrating to Australia where you attended school. At the age of 10 you were diagnosed with Attention Deficit Hyperactivity Disorder and prescribed stimulant medication. However, you ceased your medication at the age of 14 which coincided with you experiencing difficulties concentrating at school, and this, coupled with an increasing conflict with teachers and peers, motivated you to leave school when you were in Year 8.
22You commenced a boilermaker apprenticeship, however, you were terminated during your second year. You have since engaged sporadically in casual employment, having previously worked in factories, food handling and for a car exhaust company. You have not been employed since 2014 and relied on Centrelink payments for income. More recently you have engaged in casual work.
23You began using drugs in your teenage years and this continued into your 20s. You resorted to using amphetamine and methamphetamines as a teenager as a form of self-medication to assist with your concentration and general functioning. At times you have consumed 3 grams of methylamphetamine daily. Although opportunities have been afforded to you through court dispositions, you have never really engaged in any sustained rehabilitative treatment until your entry into Odyssey House in February 2022.
24It seems from an earlier psychological report of Warren Simmons from 2016 that you were assessed as being in the average range of intellectual functioning. You do not have an intellectual disability. Your offending must be looked at in the context of your ongoing addiction to drugs and to some extent, the role your ADHD has played.
25You are not involved in a significant relationship and you have no children. Previous relationships have been characterised by mutual drug use. According to an earlier psychological report prepared by Michael Crewdson from 2021, and that of Warren Simmons, there was some suggestion that your mother may have experienced mental health issues associated with depression, and your father had issues with alcoholism. Your relationship with your immediate family is marred by conflict. Although for a period you remained close with your older and only sister, as a result of offending against family members, she ceased all contact with you. Your family are aware that you engaged in treatment at Odyssey House. They remain estranged until you can demonstrate long-term abstinence and treatment.
26Prior to the grant of bail you were held on remand at various prisons following your arrest in December 2019. As a consequence you have been in custody during COVID-19 which included periods of 23 hour lockdown, reduced mental health treatment, restrictions on movement within the prisons and the inability to receive visitors. You have had very little opportunity to engage in any rehabilitative or vocational programs whilst on remand. I take this into account, and note that your time in custody would have been made more difficult as a consequence of these onerous conditions.
27Although you were in custody between 27 December 2019 and 23 February 2022, you have spent 296 days pre-sentence detention. In amongst this you have served sentences totalling a period of 200 days. Although this period in custody is not referrable to pre-sentence detention, I must take it into account as part of the principle of totality, and I do so.
Odyssey House
28Upon being granted bail you spent 8 months in residential rehabilitation at Odyssey House. Whilst there you remained drug-free and were regularly subjected to supervised random urinalysis. Your interactions with staff and other residents were positive. You successfully completed stage 1 and showed real progress with respect to 2 two. So much so that you were entrusted to accompany other residents on medical drives and were provided with considerable responsibility when you were assigned a job within the medical office – a task which involved adhering to client confidentiality, handling medical records and working with the medical team to run GP sessions. According to a report from 24 July 2022 (Exhibit 4) you demonstrated responsibility and reliability with these tasks and effective communication with staff and clients.
29Unfortunately, things took a downward turn following some knee surgery which you underwent in September 2022. You were prescribed medication and began to find it difficult to engage with the program. On 25 October 2022 you had services withdrawn due to an ongoing ambivalence and lack of therapeutic alliance. This manifested in behaviours such as avoiding job function and peer relationships, lack of engagement in the therapeutic space and a general lack of motivation to change. Despite attempts to resolve these issues, a decision was made to withdraw services and you exited the program. This meant a return to the community.
30You responsibly advised your legal representatives about your exit and you managed to find stable accommodation with a friend. Since your release from custody you have reportedly engaged in casual work. More importantly, it is to your credit that you have managed to remain free from drug use whilst back in the community. I have taken into account your extensive efforts at rehabilitation and the fact that since exiting the program you have remained out of any further trouble.
31I accept that the program at Odyssey House involved a confinement and restriction of your freedoms. Applying the principle set out in
Akoka v The Queen,[1] I take this time into account as part of the instinctive synthesis, and have moderated the sentence accordingly.[1] [2017] VSCA 214.
Nature and gravity of offending
32The offending here was undoubtedly serious. Both burglary and, particularly theft of firearms, are serious offences. In your case, there was a period prior to the burglary being carried out in which you scoped out the victim's garage before returning in the early hours of the morning to carry out the theft. In doing so the fact there was a gun safe was evidence. Accordingly, there was a significant degree of preplanning. Theft of firearms is a serious offence particularly given the enormous danger to the community should they fall into the wrong hands. In your case the firearms have never been recovered. I consider your moral culpability to be high. It has been submitted that you were using drugs heavily at the time and that this provides the context for the offending.
33Charged 2 is a rolled up charge which relates to the three firearms that were stolen. When sentencing on a rolled-up charge the court must consider all of the circumstances of the offence and the totality of harm described in the charge. While I may consider all of the relevant circumstances of a rolled up charge, the plea of guilty must still be treated as entered to a single formal charge.
Plea of guilty
34This was not a plea of guilty entered at an early stage. The matter proceeded by way of contested committal and this required the victims to give evidence. The matter was listed for trial in the middle of 2022. Following a sentence indication hearing in May 2022, sentence was deferred to allow you an opportunity to continue to engage with Odyssey House. The prosecution, at that stage, indicated that a deferral of sentence would not be opposed to allow you to continue to demonstrate your commitments to your own rehabilitation. Ms Paganis, on behalf of the prosecution, submitted that having regard to the seriousness of the offending and your relevant prior criminal history, ordinarily the period already served in custody in combination with a community correction order would be inadequate. However, the prosecution also acknowledged that if there was a real chance you could reform that it would be unlikely to be in the community's interests to have you return to jail. Consequently, whether time served would be adequate to accompany a community correction order would really be contingent upon you demonstrating your preparedness to reform.
35At that point you indicated that the matter would likely resolve and there was a degree of optimism that you would continue to progress well and engage with rehabilitation at Odyssey House. Accordingly the trial was vacated. It was anticipated that you would spend a longer period with Odyssey House but ultimately this did not come to fruition and after you were exited from the program, the prosecution in December 2022 foreshadowed an application to revoke your bail. This was set down along with the Sentence Indication Hearing on 30 January 2023. At that hearing, following further submissions and following my indication, you confirmed your intention to plead guilty. You were arraigned on the same day and formally entered a plea of guilty to the two charges before me along with the summary charge.
36Despite the plea not being an early one it is nonetheless significant. By pleading guilty, you have demonstrated a willingness to facilitate the course of justice. Your plea is of considerable utilitarian value. You have spared the community and witnesses the time and expense from having to give evidence.
37Furthermore, given that your plea was entered at a time when the court has faced a considerable backlog of jury trials, as a consequence of the pandemic, your plea has additional utilitarian value. As the Court of Appeal articulated in Worboyes v The Queen,[2] your plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic's affects. As a result your plea should result in a perceptible amelioration of sentence. You are entitled to a discount in sentence both for your plea of guilty itself and taking into account that this plea of guilty has occurred during the pandemic.
CCO Assessment
[2] [2021] VSCA 169.
38I have had you assessed for your suitability for a Community Correction Order. The assessment report received by the court was, to say the least, quite disappointing. Although you indicated a willingness to engage and comply with the conditions of the order, it was the view of Corrections that you demonstrated, through the assessment process, an inability to engage in structured appointments without posing a risk of occupational violence to others. You were reportedly ‘unable to take account’ for your actions and laid blame to others. You consistently stated that you did not need supervision or people telling you what to do as part of any order.
39It is a significant component of a community correction order that those placed on such an order are willing to accept support through supervision. This is not only important to ensure the conditions of the order are adhered to but in particularly to facilitate your rehabilitation. This attitude is somewhat surprising given that you have, for many months whilst at Odyssey House, demonstrated that you can accept supports and engage with those who are there to try to help you with your rehabilitation. Without those supports, there is a real risk that you might reoffend.
40As Corrections have pointed out, you have previously been afforded opportunities through earlier Community Correction Orders, and not only have these failed to deter you from reoffending, but you have been unable to complete almost all of them with the exception of the first one imposed. Your disinterest in completing those orders is concerning and does not bode well for your prospects of rehabilitation. Having said that, your commitment and engagement with the Odyssey House program was very encouraging.
41Your lack of insight into your offending is troubling. This, and your attitude, is said to provide a significant barrier to any meaningful engagement with a community based disposition. Moreover, you have demonstrated a distinct lack of remorse, blaming victims for your offending. Thus it seems you have no regard for the impact your offending has on others. Back when you applied for bail in February 2022, the prosecution made a submission that you have no insight into your offending. It seemed, for a period of time there, that your experience at Odyssey House may have helped you developed greater insight but regrettably, despite spending over eight months working on your rehabilitation, that lack of insight still remains.
42It does seem, however, that you have managed to remain abstinent from drugs since exiting the Odyssey House program. You have done so without supports and by not going out. This is commendable, however, whether it is a feasible solution long term is unlikely. The reality is that you need supports. It is rare that those who have suffered addiction are able to recover without some assistance. Clearly the assistance that you have had to date has been of benefit to you. A Community Correction Order provides you with further supports to assist both with substance abuse issues and with your mental health. It will be up to you whether you choose to accept them. You may feel like you do not want to be told what to do. I understand that, Mr Kowalski, nobody does – but you would like it even less if you were being told what to do in jail. So it is really up to you.
43If you do not engage, if you do not accept the supports, then you can pretty much guarantee you will be brought back before the court on breach proceedings. If that happens, if you have not engaged with the conditions of the order, if you were to breach the order by further offending, then it is likely that that order will be cancelled and you would be resentenced and it is very likely that I would resentence you to a term of imprisonment.
Prospects of Rehabilitation
44There is very little evidence of remorse, other than the fact that you have pleaded guilty and accepted responsibility for your behaviour. Your efforts at Odyssey House to work on your rehabilitation, as I have said, were impressive and you are to be commended for the work that you have done to date. The fact that you were able to do this for eight months is very encouraging. So too the fact that you have remained drug free since being exited.
45I do, however, take a guarded view as to your prospects of rehabilitation given the attitude that you have displayed when being interviewed by Corrections. Corrections have assessed you as a high risk of reoffending and to that end a condition involving supervision is recommended. Whilst there is a degree of optimism that you will continue on the path to rehabilitation, those prospects will be enhanced if you are prepared to engage with appropriate supports.
Relevant sentencing factors
46The basic purposes for which court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community. In determining an appropriate sentence, I must have regard to these sentencing principles and I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence in your case, including the gravity of the offending, your culpability, the effect on the victims and your personal circumstances.
47The sentence that I pass must balance the interests of the community in denouncing criminal conduct with the community's interests in seeking to ensure that, as far as possible, you are rehabilitated.
General and specific deterrence
48General deterrence is an important sentencing consideration. Other members of the community must understand that committing burglary and stealing firearms will attract significant penalty. There is a need to protect the community from those who carry out the sort offences for which you have pleaded guilty, even though you somehow see your victims as being at fault. Just punishment and denunciation must also be given primary consideration.
49I have taken these matters into account as well as the matters personal to you. Despite my real reservations as to whether you are truly mentally prepared to commit to a Community Correction Order, and despite the attitude you exhibited in your interview to such an order, I am prepared to place you on an order in conjunction with time already served. I know that this is a sentencing option which the prosecution conceded was open to me prior to the assessment taking place. The prosecution have not sought to revisit this position even with the unfavourable report from Corrections.
50I am prepared to place you on a Community Correction Order and as I have said, I will require you to serve no further time in custody but, Mr Kowalski, this is your last chance.
Sentence
51On Charges 1 and 2 you are convicted and sentenced to 296 days in prison to be followed by a Community Correction Order for a period of 18 months. There are a number of conditions that are attached to this order as follows.
·You must perform 150 hours of unpaid community work over 18 months.
·You are to be under the supervision of Corrections for a period of 18 months.
·You must undergo treatment and rehabilitation for drug and alcohol use.
·You must undergo treatment and rehabilitation with respect to your mental health.
·You must undergo treatment and rehabilitation to address your risk of re-offending.
·I am going to allow that 100 hours of treatment and rehabilitation can be counted as hours for the purposes of the unpaid community work condition.
52There are also a number of core conditions attached to a community correction order.
·You must not commit any other offence that is punishable by imprisonment during the 18 month period.
·You must comply with any and all obligations and requirements.
·You must report to and receive visits from Corrections.
·You must report to the nearest Community Correction Centre, which I believe is in Broadmeadows, within two clear working days from today.
·You must let a Community Corrections Officer know within two working days of a change of address of job.
·You must not leave Victoria without first getting permission.
·You must obey all lawful instructions from Corrections.
53Now if you were to breach any conditions of the order, if you were to decide not to do the work or the rehabilitation component, for example; if you committed any further offences, as I have said, it is likely you will be brought back before me on a breach and I would need to re-sentence you for this offending.
54In relation to the summary charge of failing to answer bail, you will be convicted and fined the sum of $300.
Pre-sentence detention
55I declare 296 days pre-sentence detention to be reckoned as time served.
S 6AAA
56But for your plea of guilty I would have sentenced you to a term of imprisonment for a period of three and a half years with a non-parole period of two years' imprisonment.
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