Director of Public Prosecutions v Kowski

[2019] VCC 164

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MILDURA
KOORI COURT

CR 18-01876

DIRECTOR OF PUBLIC PROSECUTIONS

v

CASEY KOWSKI

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:	18 February 2019
DATE OF SENTENCE:	18 February 2019
CASE MAY BE CITED AS:	DPP v Kowski
MEDIUM NEUTRAL CITATION:	[2019] VCC 164

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Lew	Office of Public Prosecutions
For the Accused	Ms R. Greensill	Ann Valos Criminal Law

HIS HONOUR:

1Casey Kowski, you have pleaded guilty to two charges of armed robbery.  That crime carries a maximum penalty of 25 years' imprisonment.  You pleaded guilty at a reasonably early opportunity and the matter has proceeded as a plea.

2You are now 33 years of age. Insofar as remorse is concerned I have a somewhat guarded view of it, but you certainly expressed appropriate remorse and it is to be hoped that your experience of Koori Court today will have enhanced that feeling.

3You obviously must get the utilitarian benefit of that plea of guilty.  It has saved two people at least from giving evidence and, in particular, your second victim would have found that a pretty shattering experience, I would have thought.

4You have a long criminal history dating back to your teens.  You do have prior convictions and in fact have been gaoled in the past for violence.  I notice there is one robbery matter in there and there are aspects of that in a sentence of Judge Bourke's that I do not really need to go into in open court.  There is little in your actual criminal history to give much hope for the future.  However, at the age of 33 it is an age where people can turn their lives around if they are genuine and you expressed in Koori Court today that you were genuine in that desire and both myself and the elders think that that view is at the present moment, genuine.  Whether you can maintain that, of course, is an entirely different story.

5The sentence that you have been undergoing and will continue to undergo will be carried out in protection and I accept that that is a mitigating factor.

6In your particular situation you have now been reclaimed by the New South Wales Parole Board for a sentence that was imposed in 2017 and owe them something in the order of five months.  I take that into account insofar as totality is concerned in that it is almost certain upon your completion of the sentence that I impose, you will be taken to New South Wales to undergo that as well.

7In this particular situation I am well aware of the matters that are referred to in Boulton, not insofar as a community corrections order is concerned, but in Boulton it was pointed out a sentencing judge is entitled to take into account that in all things being equal a person will become eligible for parole on or about the finalisation of the minimum term.

8In your set of circumstances with all your prior convictions and your previous breaches of parole, I sentence you on the basis that your state of mind, and it is a very understandable one and I have got no doubt correct, that you will never be paroled.  That is, as I say, not a matter that I take into account in determining the mathematics of it all but certainly you will undergo the sentence believing that to be the case and it concerns me that you are probably already to a degree institutionalised and it is always desirable, if possible, to avoid that sense of hopelessness that could come about.

9However, in your particular situation I will just describe, you do have an extensive criminal history and the offending, certainly in respect of Charge 2, is indeed serious.

10On 29 December 2017 the complainant in Charge No.1 was with friends going to the PJ's Foodworks Supermarket in Mildura.  At approximate 12.50 pm
Mr Cripps entered the store and the others waited in the car.  You exited a nearby store, approached the vehicle on foot and got into the back passenger seat.  You apparently said, "I've got to get out of this area".  You were not strangers to Cripps, having known each other since you were about 13 years of age.

11A drive then took place while Cripps and Murphy were having a conversation about buying a television and an air conditioner.  You, on the material before me, offered to sell Cripps a television and air conditioner for $350.  Upon arriving at an address the vehicle went and first remained at the house.  You, Cripps and his girlfriend, as I understand it, walked along, talking about the air conditioner.  You then handed him a car key and said, "You can trust me with this.  I'm not going to rip you off.  I've got a car".  Murphy waited.  You did not turn up and she went home.  You and Cripps walked on, reached Henley Park near the train line, sat at a table and chairs together.  You there put your right hand into your pocket and pulled out a silver flick knife.  It had a blade that was about 10 to 15 centimetres long.  I assume it is a flick knife and not something that was just simply taken out of a kitchen.

12You flicked the knife out and said, "If you don't give me your money I'll stab ya".  You then used both hands to push his shoulders and held him to the ground and said, "Give me your money".  He gave you, he says, about $350 in $50 notes.  That is Charge 1 of armed robbery.  You said to him, "I'll be back in a minute in a BMW car with a TV", and you threw some Adidas thongs at him.

13Murphy had been waiting for him and as he had not seen either return she went home.  When he arrived home he told her what had happened and, indeed, it was her who contacted police.  Statements were taken and you were ultimately charged and pleaded.  The story would appear to be supported by CCTV footage from PJ's Foodworks.

14You, during the course of the sentencing conversation in the Koori Court, said there was more to it than that, that in reality it was some sort of drug deal gone wrong. That might well be true, but in any event, whether it is or it is not, you still cannot do it.

15On 31 December 2017 a few days later you approached a tent in the Apex Caravan Park in Mildura and spoke to a Mr Warwick Shannon.  He had been camping in this tent there at the time.  You struck up a conversation with him and told him you could help him find his brother and sister with whom he had been estranged for a number of years.  You led him to the caravan park kiosk where the witness, Garry Hales, observed the two of you.  He said that you were asking about accommodation and were then asking the price of ice-creams in the store.  You asked him how much icy-poles were, to which he said, "$1.10".  You then produced some small change totalling $1.05 and stated, "That's all the money I have".  He then sold you the icy-pole.

16While waiting outside the kiosk you called a taxi under the name of John, telling Mr Shannon you would be able to use the phone to help locate his family.  I do not know what his intellect is like but I suspect it is not good.  The two of you were driven by taxi to Pine Avenue in Mildura.  Mr Shannon paid the taxi fare and whilst doing that you observed, obviously from the materials, that he had a significant amount of money in his wallet.  You told him you would go to your parents' unit and led him along the street.

17In fact it led to the Sunraysia Community Health Services, which was closed.  You told him that you would wait in the small hallway for your parents.  While sitting on the ground you stood up and produced the knife and held it two to three inches from him.  You demanded his wallet, saying, "All right, hand over your wallet", whilst holding the knife up close to him. He was terrified and scared.  He pulled his wallet out of his pocket and gave you the entire wallet.  It contained around four to $500, and that is Charge 2 of armed robbery.  You told him, "If you tell anyone I'll find you and I'll shoot you".

18He was terrified, and waited in the area for a short time to ensure that you had left.  He then made his way on foot, back along Tenth Avenue to Langtree Avenue, where he found a pay phone and called police.  You were seen on CCTV footage and in any event went into a service station and laid out a number of $100 bills as you paid for drinks and cigarettes.

19After that purchase you exited the store, walked over to a set of units and a resident there you spoke to said, "I've done something stupid".  People came to the address and arrested you.  At that point you had $400 hidden in the waistband of your shorts and a folded up flick knife with a long silver blade and silver and black patterned handle.  As I have said, it is not something that has just been grabbed out of the kitchen.

20In any event, you were arrested and deemed not fit to be interviewed.  I certainly would not hold it against you. In the course of the conversation it has been pointed out that you cannot understand why you committed these offences, that you already had money and there was no need to do it.  Well, there is no sign of the $350 that was taken off Mr Cripps and you certainly had no sign of having much money on when you bought the ice-cream for $1.05, and when police arrested you the only money on you was the money you had taken from
Mr Shannon.

21So you purport not to have a memory of it.  Whether that is true or not I do not know.  The fact of the matter remains.  It is serious offending indeed that a very vulnerable older man was, on the pretence of a reunion with members of his family, lured into armed robbery where he was terrified.  He has put in a victim impact statement which says in part, "I trusted the offender because I thought he was a nice guy but after this incident I find it hard to trust people.  I get scared when I see a gang or new people around me".  "I find it hard to do things I enjoy, for example, after this incident I do not walk to shops at night, especially on Friday and Saturday because I feel that the gang may hurt me". He goes on to say how he does not carry money and he is worried that people will hurt him.

22As indicated during the course of the plea, armed robbery is always a serious crime but that second example of it, in my view, is a very cowardly one and as was pointed out to you in the course of the sentencing conversation, you attacked somebody that had no defence and was totally vulnerable.

23The offending calls for the application of general and specific deterrence as well as denunciation and appropriate punishment. You are still only 33 years of age.  It is getting very close to the time, Mr Kowski, when public protection is going to start to play a pretty important part in you being sentenced if you are sentenced again.  Communities reach a point in time when they just do not want people like you amongst them and you are still a young Koori man.  It has been pointed out clearly by the elders that this extends into your own community and this all in the end is all really a matter for you.

24You still have good family support, which is somewhat encouraging.  As I have indicated, I am taking into account totality.  There are matters in mitigation.  A number of psychological and one psychiatric report were tendered on your behalf.  You have been using ice or certainly amphetamine and speed since a young age and you suffer from, I think, and quite clearly, strong or severe depression.  You have been on Seroquel, you have been on other drugs.  You say that you are only ever on Seroquel when you are in custody and when you are released you stop using it.  It appears, and again this does not aggravate it, that in these circumstances you have failed to take responsibility.

25If that continues to happen you will continue to get locked up and to spend the bulk of your life in gaol, as you would be fully aware with drug addiction such as yours with the male Koori population, you will be lucky to get to 50.  They are all matters for you and you now say to the elders in this process that you have reached a point where you could turn it around.

26I have taken into account all those psychiatric and psychological materials that have been put on your behalf.  I understand that you have done courses in gaol, which is not easy when you are in protection and when you are on remand, and that all speaks to your benefit.

27Your ultimate rehabilitation is realistically totally up to you.  If you continue to use and continue to behave in this way the risk of you reoffending is clearly going to be high indeed.  If you can resist the need to use ice and you can in effect change your attitude as to who is responsible for your life, that being you and nobody else, then hopefully from the community's point of view as well as your own and your family's, you might make something of your remaining years but, as I said, I do regard it as serious.  I am aware of principles of totality and you are still a young age, and accordingly, I propose to sentence you as follows.

28On Charge 1 of armed robbery, two years; on Charge 2 of armed robbery, three years.  I direct that one year of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2.  That gives an effective head sentence of four years.  I direct that you serve a minimum term of two and a half years before becoming eligible for parole and, as I have said, I am very mindful that you will almost certainly have to do that entire sentence and then go and do another sentence in New South Wales.

29I direct that 414 days be reckoned as having been served under this sentence, and so that you understand the benefit of having pleaded guilty in these circumstances, pursuant to s.6AAA of the Sentencing Act I say that but for your plea of guilty I would have sentenced you to be imprisoned for a period of six years with a minimum term of four.

30All right?  No other orders I have to make?

31MR LEW:  No, Your Honour.  Just the disposal orders and the - - -

32HIS HONOUR:  I have done those.  They are made.  There is no 464 obviously.

33MR LEW:  No.

34HIS HONOUR: They have probably been taken a hundred times.

35MR LEW:  Yes, Your Honour.

36HIS HONOUR:  Yes.  No other orders needed, Ms Greensill?

37MS GREENSILL:  No, Your Honour.

38HIS HONOUR:  No, all right.  You can remove the prisoner, thanks.

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