Director of Public Prosecutions v Kowski
[2023] VCC 2413
•6 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-01968
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CASEY KOWSKI |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Koori Court Plea – Mildura Sentence – Melbourne | |
DATE OF HEARING: | Koori Court Plea - 3 July 2023 | |
DATE OF SENTENCE: | 6 October 2023 | |
CASE MAY BE CITED AS: | DPP v KOWSKI | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2413 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Koori Court, Attempted armed robbery, common assault
Legislation Cited: Sentencing Act 1991 (Vic);
Cases Cited:Worboyes v The Queen [2021]; Honeysett v The Queen [2018] VSCA 214; R v Verdins & Ors (2007) VSCA 102
Sentence: Total Effective Sentence is 3 years imprisonment with a non-parole period of 20 months; 501 days reckoned as served; s6AAA: 4 years and 8 months imprisonment with a non-parole period of 3 years and 2 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Lew | Office of Public Prosecutions |
| For the Offender | Ms R. Greensill | Robyn Greensill & Associates |
HER HONOUR:
1Casey Kowski, you have pleaded guilty on indictment to single charges of attempted armed robbery and common assault.
2In sentencing you for these crimes, I must have regard to the maximum penalties for the offences you have committed. Those maximum penalties are as follows:
· Attempted armed robbery – 20 years imprisonment
· Common assault – 5 years imprisonment.
3These maximum penalties reflect the seriousness with which Parliament regards each of these offences.
4The circumstances of your offending are set out in a document titled 'Summary of Prosecution Opening Upon Plea' dated 15 February 2023. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
5I will not repeat the entire summary as it is a matter of record, but in brief terms, the offending that gives rise to these charges occurred in Mildura on the morning of 23 May 2022 at which time you were 36 years of age.
The Offending
6On 22 May 2022, you attended at a Boating Camping and Fishing store in Mildura and purchased a Muela 9.5 Skinner knife. You were captured on CCTV.
7On 23 May 2022, at approximately 6.40 am, Ms Huong Nguyen walked into her garage situated underneath her home. She was with her 13 year old daughter, Anna Dinh.
8The undercover carpark access to their garage is gained via a lane. Ms Nguyen noticed the roller door to her garage was already up and believed she had forgotten to put it down overnight.
9Ms Nguyen saw a male approach her daughter as she was standing beside her Nissan Navara utility parked in the garage. This male was you.
10You demanded that Anna Dinh give you the key, whilst holding a knife towards Anna Dinh's throat. The blade was approximately 15-20 centimetres in length. Ms Nguyen told you that she did not have the keys and told her daughter to run. Both victims then ran away from the garage.
11You also fled the scene and eventually made your way to the Langtree Mall.
12At approximately 7.00 am, you were walking from Eleventh Street towards Langtree Parade. As you entered Langtree Parade, Ms Karen Walshaw parked her motor vehicle opposite the Department of Family, Fairness and Housing carpark.
13You approached her vehicle from behind, entered the front passenger seat and stated 'we're going to drive; you're going to drive me'.
14Ms Walshaw started screaming at you to get out of her vehicle. You told her to stop screaming and were leaning over her. Ms Walshaw blocked you from getting the keys by removing them from the ignition and throwing them onto the floor.
15You started to open the door and stated 'they're going to kill me, they're going to kill me - you need to drive'. Ms Walshaw told you that she didn't care, and you exited the vehicle and ran down Langtree Parade towards Twelfth Street.
16On 23 May 2022, you were arrested by police and conveyed to the Mildura Police Station. As is your right, you refused to be interviewed by police. You were charged and remanded into custody.
Offence gravity and victim impact
17This is obviously serious offending.
18Whilst there is no victim impact statement from Ms Nguyen or Anna Dinh, I have little hesitation in accepting that each would have been frightened to see a man in their garage at the start of their day, particularly when that male had a knife, was threatening and had held it towards Anna Dinh's throat. Ms Nugyen would have been fearful for herself and her daughter and Anna Dinh would have been fearful for herself and her mother.
19Threatening a child with a knife is an aggravating feature of your offending. It was designed to scare that child but it was designed to scare Ms Nguyen to do as you said as it placed her in fear for her child's safety.
20The attempted armed robbery was of a valuable item and occurred in their own home, an environment in which Ms Nguyen and Anna Dinh were entitled to feel safe.
21In a completely separate incident, Ms Walshaw was sitting in her car about to commence work for the day when you entered her vehicle in an aggressive fashion and demanding that she drive. You are of a big build. Ms Walshaw was 69 years of age, alone, it was dark, and you caught her by surprise. This made her particularly vulnerable.
22A Victim Impact Statement authored by Karen Walshaw dated 2 November 2022 was tendered by the prosecution at your plea hearing.
23The purpose of a Victim Impact Statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
24Mr Walshaw describes her fear when you entered her vehicle and was worried that she would be seriously harmed by someone she described as a 'random violent stranger'.
25At the time of writing her Victim Impact Statement she still felt extremely fearful, was hypervigilant, and anxious as a result of your offending. She feels afraid when she is out in the community and when going about her daily business, something which she had never felt before.
26Ms Walshaw’s victim impact statement was read to the court by the prosecutor so the significant effect of your offending on Ms Walshaw cannot be lost upon you.
Plea of guilty
27The Sentencing Act obliges me to take into account the stage at which you entered your guilty plea. This matter resolved by way of a straight hand-up brief at committal mention representing a plea made at an early opportunity.
28There is clear value in saving witnesses of the need to give evidence, particularly your victims, and utilitarian value in saving the community the expense of contested proceedings.
29Your decision to plead guilty in the context of the COVID-19 pandemic has additional utilitarian value as it does provide both certainty and finality to all parties in circumstances where the court's operations were significantly disrupted by the pandemic.
30Overall, I am satisfied that you are remorseful for your offending.
31These factors will be taken into account in your favour.
Koori Court & Sentencing Conversation
32In addition, your plea took place in the Koori Court. The Koori Court can only hear a plea proceeding involving an Aboriginal or Torres Strait Islander offender who pleads guilty and consents to the matter being dealt with by the Koori Court and where a judge considers the matter is appropriate to come before the Koori Court.
33The clear objective of the Koori Court is to ensure greater participation of the Aboriginal community in the sentencing process of the County Court through the role played in that process by Aboriginal elders and/or protected persons. Others such as family members and supports are also able to contribute in what is referred to as the sentencing conversation. The sentencing conversation is designed to assist the reform of an aboriginal offender through a blend of customary law and the English common law. Participation in the process can be more burdensome than appearing in a traditional plea hearing, because of its confronting nature and the inability of the offender to hide behind their counsel.
34In a decision of Honeysett v The Queen [2018] VSCA 214, the Court of Appeal looked at the Koori Court plea process and stated:
'In our view, in determining the weight to be attached to an offender's participation in a Koori Court sentencing conversation as a mitigating factor, a sentencing court should consider a range of factors including:
'(1) The fact that participation in the process is a voluntary one, maybe confronting to the offender and will likely involve him or her being shamed. As noted in Morgan, participation in the process may of itself be rehabilitative;
'(2) The fact that an offender is, rather than hiding behind counsel, taking the opportunity to personally, (a) Demonstrate his or her remorse for the offending, (b) Demonstrate insight into the reasons for and the seriousness and effect of the offending and (c) Express any intention to reform and how that will be done, including by participating in available rehabilitation programs;
'(3) The court's assessment of the genuineness of the offender's statements during the sentencing conversation.
'That assessment should take into account all of the information before the court. Based on the court's assessment of the quality and genuineness of the statements made by the offender, it is a matter for the individual judge to assess weight in the circumstances of the particular case.
'In fixing a sentence, it is a duty of the court to impose just punishment adapted to all the circumstances of the case by reference to the permissible sentencing purposes of general and specific deterrence, any means by which rehabilitation of the offender be facilitated, denunciation of the offending and the need to protect the community.'
35Aunty Sandra Stewart and Uncle Warren Clark were the respective Elders who took part in the 'sentencing conversation' that included you, your mother, your grandmother, your daughter and your sister. Each of the Elders challenged you and you were respectful towards them. They reminded you of the importance of your community and what it offers to you by way of assistance and connection. Each of them emphasised that you need to have a plan for a positive future and, quite frankly, to stop using drugs.
36When your mother spoke of the impact upon her and other family members of your offending and your incarceration, it was apparent that the negative ramifications upon others of your decision-making is something which you have had brought firmly to your attention.
37I find your participation in this process to be genuine and this is another factor taken into account in your favour.
38I turn now to your personal circumstances.
Personal Circumstances
39Tendered on your plea were Defence Submissions, a psychiatric report authored by Psychiatrist Lester Walton dated 21 March 2012 and three reports authored by Psychologist Bernard Healey dated 27 June 2015, 23 November 2018 and 3 February 2023.
40I have had recourse to each of these reports and will return to them at a later stage.
41These reports also revealed much of your background.
42You were born in December 1985 in Mildura and are currently 37 years of age. You have a younger brother and sister.
43You are Koori and your tribe is the Wiradjuri people. Your mother is Aboriginal and your father has a German background.
44Your maternal grandmother is an Elder of the Koori community in Mildura. You enjoy a close relationship with your grandmother, mother, and sister who remain supportive of you, however, have expressed their exasperation at your pattern of drug abuse and offending. I am told that you do not have contact with your brother.
45Your mother currently has a successful cleaning business in Mildura and your father normally works at a recycling factory, although has had some time on Workcover due to an injury.
46You grew up in Mildura and until mid-adolescence, your home life was disrupted by your parents excessive alcohol consumption and cannabis smoking. You report they ceased their smoking and alcohol abuse some time ago.
47You were only 15 years of age when your parents were incarcerated for drug trafficking. You then lived with your maternal grandmother; however, this relationship was characterised by conflict.
48You attended both primary and secondary school in Mildura, up until Year 10. You had been diagnosed with ADHD when you were 7 years of age. You did play football as a teenager but had to stop due to the excision of your right kidney at the age of 15 following being struck by a star picket during an assault.
49At school you felt discriminated against and were called a 'Schitzo' due to your ADHD condition. This condition led to learning difficulties, yet you report that you did achieve some degree of academic prowess, but that this fell away in the context of your parents' incarceration.
50I do accept that there are aspects of your formative years which would have been very difficult. You were brought up in an environment of excessive drug and alcohol use and were separated from your parents when they were incarcerated. These early events are something that I take into account in shaping the man you are today and your early resort to drug use. It is capable of moderating to some degree your moral culpability for your offending history and the matters before me.
51In terms of your employment history, you left school in 2002 and gained employment at a vineyard in 2006 where you worked labouring 7 days a week. You have not worked since your release from custody in 2011 and are a disability pensioner due to your mental state.
52Assaults and accidents are salient features of your background. At the age of 5, your parents became aware that you had been sexually assaulted by a local paedophile. At the age of 25, you were hospitalised after being stabbed in the back and suffering a lung puncture. Some 2 months later, you were again assaulted and required 7 stitches to a laceration sustained to your eyebrow. In 2012, you believe you were deliberately run over by a car and were once again hospitalised with a severe laceration to your lower right leg and a tear to your tendon on your left leg. You experience persisting pain in your leg from this incident. You have also told Mr Healey that, prior to your current offending, you were assaulted by being beaten with an iron bar.
53In terms of family life, you have had relationships with different women over the years, however they have often deteriorated in the context of your incarceration and drug abuse. Most notably, you have had an on-again-off-again relationship with Rebecca Bysouth, for approximately 12 years, with whom you share a son.
54Materials would indicate you have a total of 5 children from different relationships. There is currently some uncertainty in relation to your paternity of a daughter, Nadisha. You currently have pending charges of rape and incest against you where Nadisha is said to be the complainant. These matters are listed for trial sometime next year and has been a considerable source of anxiety and distress for you during your current remand.
55You have a history of drug addiction and frequent intravenous drug use, which has been interrupted by periods of incarceration. You commenced injecting amphetamine from the age of 16 years of age and developed a habit that continued until 2006.
56You started using ice some 10 years ago, and would inject up to a gram intravenously every day.
57You were abstinent from drugs for a 4 year period whilst in prison. During your time in Karrenga Prison, for 3 of the 4 years, you were assigned tasks to be a peer support person for Aboriginal prisoners and also assisted with the induction of such prisoners upon their entry into custody. Having the opportunity to mix with other Aboriginal people and consider your Aboriginality is something you now do with great pride, and you felt relatively settled during that period of incarceration.
58You were released in December 2021 and rapidly succumbed to ice use once again. You told Mr Healey that drugs provide you with an escape from what you view to be your wasted life and sustained losses.
59You describe being on an 'ice cocktail' at the time of the offending currently before the court, which occurred shortly after being released on parole from a 4‑month term of imprisonment in New South Wales on 8 May 2022. You describe having little memory of the offending, however stated that, at the time, an associate had been murdered and you had become increasingly paranoid that you were being followed and were going to be murdered next. This explains or gives context to your offending before me and your possession of the knife used in the attempted armed robbery.
60You have a history of non-compliance with medication regimes and this combined with your drug abuse has been disastrous to your state of mind and has contributed to your offending behaviour and periods of mania.
61Much of your life has been characterised by a pattern of drug fuelled offending, subsequently being incarcerated, remaining abstinent from drugs whilst in prison, and then relapsing and offending once released back into the community. That description fits the matters before me.
62You have unfortunately spent a great deal of your adult life in prison and have become somewhat institutionalised.
63I now return to the expert reports tendered on your behalf.
64In brief compass, Dr Walton's report of 2012 describes you to be of average intelligence. His report appears to have been written in the context of an application for you to be supervised under the then Serious Sex Offenders (Detention and Supervision Orders) Act 2009 He agreed that you had been properly diagnosed as suffering from attention deficit hyperactivity disorder. He did not see supervision focusing on your sexual offending as playing any useful role.
65Mr Healey's report of 27 June 2015 describes you as being on remand having returned to drug use and being charged with further offending. At the time of his assessment of you, Mr Healey described you as drug free, reconciled with Rebecca Bysouth, and to your mother having a positive influence upon you. You were resolved at that time to make drastic changes in your life. You were taking prescribed medication and seeing the benefits. Your IQ was assessed at 90 where 75 per cent of people your age would do better. Vulnerability to a return to drug use remained.
66Mr Healeys' report of 23 November 2018 was again conducted with you on remand as you were alleged to have committed two armed robberies. You again expressed shame for your actions, linking them to your use of the drug ice. Mr Healey linked your offending to major depression disorder, unassisted by non-compliance with prescribed medication and the intake of the drug ice. You were again settled on a medication regime, had completed courses in custody and were reflecting on your offending with shock, shame and a lament about your wasted life. On this occasion, your IQ was assessed at 102 where 45 per cent of people your age would do better. Mr Healey noted a raised level of depression, anxiety and a hypomanic trend consistent with the legacy of a condition related to ADHD.
67Mr Healey's report of 3 February 2023 was prepared in contemplation of the matters now before me. You spoke of your relapse to drug use having been released from custody in December 2021. Your offending of 25 May 2022 took place in the context I have already described. You reported having little memory of your conduct. You were again reflective on the outcome for you of your drug addiction in the loss of important relationships.
68Mr Healey diagnosed you with the drug use disorder, persistent depression, major depression and generalised anxiety. He also indicated paranoid, borderline, Antisocial and Melancholic personality trait patterns at what he described at a ‘disorder level’.
69Mr Healey was of the opinion that you have been troubled by significant disorders for quite some time and your more recent offending was during a phase of psychotic functioning.
70Based on this report, your Counsel contended that the criteria established in R v Verdins & Ors (2007) VSCA 102 applied and that any sentence should be mitigated to allow for your psychological difficulties and bipolar illnesses which, it was argued, contributed to your offending conduct. It was argued that your moral culpability should be reduced as these conditions impaired your judgement.
71I indicated I was not satisfied at that point in time that Verdins did have application based on the content of Mr Healey's most recent report and your admitted excessive abuse of drugs at the time of the offending.
72Since your initial plea hearing on 3 July 2023, a further expert report has been tendered. Your Counsel pursues the application of the Verdins principles in relation to a reduction of your moral culpability and the impact of specific deterrence in the sentencing mix, and argues that your time in custody is made more difficult.
73A report dated 15 August 2023 authored by Dr Lester Walton, Consultant Psychiatrist has been tendered. Dr Walton attended upon you by way of videoconference on 3 August 2023, having assessed you previously in both 2011 and 2012. He had access to the other expert reports.
74You were medicated at the time of Dr Walton's attendance upon you and there was no evidence of current psychosis. Dr Walton states that he has not obtained any convincing history of the characteristic mood swings associated with bipolar disorder. He did note that you were prone to re-occurring bouts of depressed mood.
75At the time of your offending, Dr Walton does state that your capacity to 'consistently exercise proper social judgement was significantly impaired due to the combination of mood disturbance and the drugs'.
76In terms of Verdin considerations, Dr Walton was not of the view that your offending behaviour was the direct expression of mental illness but rather you are a person prone to serious mood disturbance amplified by your drug usage. He states 'this might be seen as a psychiatric phenomenon which has at least made some contribution to the offending'.
77I am of the view that given your admitted excessive ingestion of methylamphetamine and/or a 'cocktail of drugs', it is simply too difficult to make a determination of the level of contribution the drugs made to your decision to offend and how much mood disturbance made to that decision. I therefore do not see a basis to reduce your moral culpability on this basis and express an obvious concern that you appear to continue to offend in the context of a return to drug usage.
78Dr Walton was not of the view that your experience of imprisonment was unusually more onerous than that of other prisoners.
Criminal history
79Of course your prior criminal history does form part of your personal circumstances.
80You have three court appearances in New South Wales, one in 2004 for minor driving offences and two in 2017 which included charges of failing to appear on bail, larceny, assault occasioning actual bodily harm, property damage and break and enter a house. For these last two offences, you were convicted and sentenced to 12 months' imprisonment with a non-parole period of 6 months by the Broken Hill Local Court on 28 June 2017.
81You apparently owe a parole period in New South Wales.
82In Victoria, you have what can only be described as an extensive criminal record, spanning some 20 years and 21 court appearances.
83Your history includes sexual offending, a number of dishonesty and violent offences as well as breach of court orders which include bail orders, family violence orders, sexual offender registry orders and sentencing orders. I do not intend to recite the entirety of your record as I have had recourse to the full record, but of relevance to the sentencing exercise before me are a number of appearances.
84Your first appeared at the Mildura Magistrates' Court on 2 May 2003, for burglary, theft, resist police, unlawfully being on premises and dishonestly undertaking in the realisation of stolen goods, for which you received 8 months detention in a Youth Training Centre.
85On 28 February 2005, you appeared at Mildura Magistrates' Court for breaching a Community Based Order which had been imposed upon you on 10 September 2004 and for charges of burglary and theft. You received 6 months in a Youth Training Centre.
86On 27 January 2006, you appeared at the Mildura Magistrates' Court for charges of burglary, theft, drive motor vehicle without a licence, attempt to commit an indictable offence, resist police and theft of a motor vehicle and were sentenced to a term of imprisonment of 12 months with three-months imprisonment before you were eligible for parole. Your licence was also disqualified for a period of two months.
87On 15 November 2006, the County Court at Mildura sentenced you to a term of 12 months imprisonment, wholly suspended for a period of 18 months, for two charges of sexually penetrate a child under the age of 16 years. You breached this suspended sentence and on 23 April 2007 the Melbourne County Court sentenced you to 12 months imprisonment with a minimum of six months before you were eligible for parole. This appearance of course is not relevant in relation to the offending before me in a pure sense but is part of your chronology overall and also your response to the imposition of terms of imprisonment.
88On 21 February 2007, you received a seven-month term of imprisonment at Mildura Magistrates' Court for charges of aggravated burglary with a person present, theft, using ecstasy, assault police, escape from lawful custody, unlicensed driving, burglary, handle stolen goods, and obtain property by deception.
89On 1 May 2008, again at the County Court sitting in Mildura, you were sentenced to a term of three months imprisonment for a charge of robbery.
90On 19 October 2011, you appeared at the Melbourne County Court for three charges of sexual penetration of a child under the age of 16 years, and indecent act with a child under 16. You were sentenced to a total of three years imprisonment with one year and three months of that sentence suspended for a period of 15 months. You were also registered as a sex offender for life. Again, that appearance is not directly relevant in terms of the type of offending, but is again relevant to your response to court orders.
91I am part way through the sentencing process, but Mr Kowski is indicating some distress. Do you want me to stand down, Ms Greensill? He's putting his hand up, so I will stand down temporarily.
(Short adjournment.)
92Thank you, Ms Greensill. Am I in a position to continue?
93MS GREENSILL: Yes, Your Honour.
94HER HONOUR: I might have to backtrack a fraction.
95On 19 October 2011, you appeared at the Melbourne County Court for three charges of sexual penetration of a child under the age of 16 years, and indecent act with a child under 16 years. You were sentenced to a total of three years imprisonment with one year and three days of that sentence suspended for a period of 15 months. You were also registered as a sex offender for life. That is relevant in the same way as the earlier sentence that I referred to for sexual offending.
96On 16 August 2012, you received 70 days imprisonment at Mildura Magistrates’ Court for threatening to inflict serious injury, unlawful assault, fail to comply with reporting obligations, and acting in a prejudicial manner to the good order of a gaol.
97On 21 February 2013, you appeared at the Ringwood Magistrates' Court for charges of burglary, intentionally damage property, two counts of theft, enter a private place without lawful excuse, resist police, unlicenced driving, theft of a motor vehicle, carry controlled weapon without excuse, fail to stop vehicle on request, breach of a family violence intervention order and acting in a prejudicial manner to the good order of the gaol. You were sentenced to a 15 month term of imprisonment, of which you were required to serve 8 months with the remainder suspended for a period of 24 months.
98You breached the suspended sentence imposed 21 February 2013 and returned to the Mildura Magistrates' Court on 14 November 2013 for breaching the suspended sentence and for new charges of carry controlled weapon without excuse, unlawful assault, threat to inflict serious injury, obtain property by deception, resist police, threat to destroy property and breaching a Family Violence Intervention Order. This breach was found proven and the remaining seven months of your sentence was restored. You were also sentenced to seven cumulative months imprisonment for the new offending. You were sentenced to a period of seven months before being eligible for parole.
99On 15 July 2015, you appeared again at the Mildura Magistrates' Court where you were imprisoned for eight months for charges of dishonesty, failing to comply with reporting obligations, drug possession and driving offences as well as a charge of aggravated burglary.
100You were sentenced to nine months imprisonment in combination with a 12-month therapeutic community correction order by the Mildura Magistrates Court on 1 June 2016 for a range of offending which included offences of dishonesty – including burglary, breaches of court orders and driving offences .
101You attended Mildura Magistrates' Court on 13 December 2018 for breaching that community corrections order. The breach was proven, and the order was confirmed.
102On 18 February 2019, you appeared before the Mildura County Court in relation to two charges of armed robbery and were sentenced to a term of imprisonment of four years, with a period of two years and six months before you were eligible for parole.
103Mostly recently, on 20 March 2019, you appeared before the Mildura Magistrates Court in relation to charges of theft of a motor vehicle, threat to inflict serious injury, unlawful assault, contravening bail conditions, commit indictable offence whilst on bail and fail to report a change of telephone number, for which you were sentenced to four months imprisonment.
104Whilst not to be punished for your criminal history a second time, it is relevant to the assessment that needs to be undertaken by me as to the weight that should attach to the important principles of specific deterrence, denunciation, and protection of the community. These all carry considerable importance in your sentencing exercise.
105The fact that you have reoffended with serious offences in the context of being undeterred by terms of imprisonment nor assisted by supervisory orders is of obvious concern.
106Your criminal history is also relevant to the assessment as to your prospects for rehabilitation, a topic to which I now turn.
Prospects of rehabilitation
107In my assessment, your overall prospects of rehabilitation can only be described as guarded.
108You told Mr Healey that you felt sorry for your offending and it’s impact on others and upon your family. It is something which you have said previously.
109During the sentencing conversation, you did read a letter of apology to the victim and this has been provided to the victim. Whilst in general terms I find such documents to be self-serving, in your letter you take full responsibility for the harm that you have caused. You say that you are committed to doing the work to help ensure that you better yourself and the community is protected. I encourage you to maintain these insights.
110You have now been on remand for 501 days. You do appear to have used your time wisely whilst in custody.
111You have completed a number of courses during your time in custody, such as; Aboriginal Men’s Cultural Healing Program, 24 Hour Managing Ice Addition, Riding the Wave – Emotional Regulation Program and a Marumali Koori Program. You have also been involved in Aboriginal Art classes and have had your art exhibited at the Torch Exhibition and sold some of your work.
112Your aboriginality is important to you and you would appear to be a skilled artist. You were able to show some of your art during the sentencing conversation. You find that painting helps to calm your mood.
113A discharge summary dated 23 June 2022 indicates that you were referred to the Raven Hall correctional Centre outpatients from the Kareenga prison as you required more intensive psychiatric assessment. This document does refer to a diagnosis of bipolar affective disorder. It appears that you are compliant with treatment recommendations and prescribed medications.
114You have also recently engaged in the Moroka Program, an intensive specialist prison inpatient treatment program to assist with mental illness and challenging behaviours.
115In a letter dated 28 June 2023 authored by Dr Daniel Simsion, clinical psychologist and Moroka Program Manager, the court was told that you were engaged in the second week of the 13-week program. Accordingly, your plea was adjourned from 3 July 2023 until today’s date to give you the opportunity to complete that program.
116Certificates of completion of the Dialectical Behaviour Therapy Mindfulness Module, Distress Tolerance Module, Emotional Regulation Module and Interpersonal Effectiveness Module of the Moroka Program have been tendered on your behalf.
117A service summary of your work with that program was also tendered. The summary does report that your diagnoses are confirmed as borderline and antisocial personality disorders with the provision of complex post-traumatic stress disorder.
118The service summary reports you gaining assistance in managing your behaviours, emotions and thoughts. You have remained compliant with medication and demonstrated motivation to change.
119Whilst each time you are in custody you do appear to engage in educational and therapeutic programs, this appears to be the first occasion in which you appear to have been able to access an intensive program related to managing your mental health and you have been compliant with it. You currently remain in a specialised unit. You are somewhat stressed for the reasons I have outlined in relation to your pending trial and concerned for the physical health of your niece, who I understand is unwell and hospitalised in Melbourne.
120Dr Walton's most recent report does find you capable of expressing remorse. He finds that you have an appreciation that you do require professional mental health assistance and you are presently applying yourself in form of group therapy and major tranquilizing medication. Dr Walton saw this as an entirely appropriate intervention and had no additional treatment recommendations.
121I certainly accept his evidence that current treatment interventions are appropriate and it may well be that the interventions undertaken on this occasion are capable of making a difference into the future.
122I accept that your well supported in the close relationship with your mother, grandmother and sister. I understand you are able to reside with your mother upon release. You have also expressed a desire to undergo drug rehabilitation.
123If you can remain drug free and utilize the continuing supports of a treatment regime and that of family and your connection to culture and community your prospects previously described as guarded may well improve.
Sentencing Submissions
124Your counsel contends that, given your recent efforts, that the court could consider a combination sentence - that is a term of imprisonment in combination with a community corrections order - as a means to reflect all relevant sentencing considerations.
Section 44 of the Sentencing Act 1991 states that when sentencing an offender in respect of one or more than one offence, a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under s18 is reckoned to be a period of imprisonment already served) is one year or less.
125You have 501 days by way of presentence detention.
126The Crown contends that you should be commended for your involvement with the Moroka program but an overall assessment of the gravity of your offending, combined with your prior criminal history should lead the court to form the view that a head sentence with an appropriate non-parole period is the only means with which to reflect all relevant sentencing considerations. I accept that submission.
Sentencing Principles
127The basic purposes for which a court may impose sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
128In sentencing you, I must have regard to a range of matters which include the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim. I must also balance the interests of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, where possible, that offenders are rehabilitated and reintegrated into society.
129I have taken into account the sentencing purposes referred to in s5 of the Sentencing Act where relevant to your case and the current sentencing practices for the offences for which you have pleaded guilty. Before I turn to sentence, I will just check whether there were any factual errors or anything else you wish to bring to my attention, Ms Greensill?
130MS GREENSILL: No, nothing that I have noticed, Your Honour.
131HER HONOUR: Mr Lew?
132MR LEW: No, Your Honour.
133HER HONOUR: Thank you.
134Mr Kowski, in relation to Charge 1, attempted armed robbery, you are convicted and sentenced to 2 years and 6 months' imprisonment.
135In relation to Charge 2, common assault, you are convicted and sentenced to 8 months' imprisonment of which six months is cumulative on the sentence imposed on Charge 1.
136Your total effective sentence is therefore one of 3 years. I fix a period of 20 months before you are eligible for parole.
137I reckon 501 days as having already been served by way of pre-sentence detention.
138Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of 4 years and 8 months' imprisonment with a minimum of 3 years and 2 months' imprisonment before being eligible for parole.
139Anything else from you, Mr Lew?
140MR LEW: No, Your Honour.
141HER HONOUR: I thank you for your assistance throughout, Ms Greensill.
142MS GREENSILL: No, Your Honour. Thank you, Your Honour.
143HER HONOUR: I thank you also for your assistance throughout and it's my practice to allow you to use the link to discuss the sentencing with Mr Kowski. I will stand down until 11.30, thank you.
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