Director of Public Prosecutions v Pilichowski

[2021] VCC 1050

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR- 19-01892

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKAS PILICHOWSKI

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JUDGE:	HER HONOUR JUDGE LEIGHFIELD
WHERE HELD:	Melbourne
DATE OF HEARING:	3 March 2021, 11 March 2021, 18 June 2021
DATE OF SENTENCE:	30 June 2021
CASE MAY BE CITED AS:	DPP v Pilichowski
MEDIUM NEUTRAL CITATION:	[2021] VCC 1050

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:  Sentence – armed robbery – commit indictable offence whilst on bail – early plea of guilty – remorse – trauma history – drug use to self-medicate mental health issues – impact of Covid-19 – reasonable prospects of rehabilitation – combination sentence – aggregate sentence

Sentence:Total effective sentence: 2 years 6 months’ imprisonment and a 3 year community correction order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Cookson	Office of Public Prosecution
For the Accused	Mr W. Barker	Theo Magazis & Associates

HER HONOUR:

Introduction

1Lukas Pilichowski, you have pleaded guilty to an indictment containing three charges of armed robbery contrary to section 75A of the Crimes Act 1958 (Vic). The maximum penalty for armed robbery is 25 years’ imprisonment.

2You also consented to this court hearing, and pleaded guilty to, a related summary offence of committing an indictable offence, namely armed robbery, whilst on bail contrary to section 30B of the Bail Act 1977 (Vic) which carries a maximum penalty of 3 months’ imprisonment or 30 penalty units.

3These offences arise from a series of incidents which occurred between 17 October 2018 and 27 November 2018 when you were 34 years of age. At the time you were living in Maidstone with your parents and your partner Kamaea Radford.

Circumstances of the Offending

4The full circumstances of the offending are set out in the summary of prosecution opening dated 1 March 2021 which was tendered as Exhibit A on the plea.

5However, in brief compass, on 17 October 2018 at 8.35pm you rode on a white BMX to a bus shelter on Hampstead Rd, Maidstone. Directly across the road from that bus shelter is the entry and exit of a Chemist Warehouse store. You sat at the bus stop for 14 minutes, before crossing the road and entering the Chemist Warehouse store. You were wearing dark clothing, a beanie, a hooded jumper and a black mouth covering at the time.

6Upon entering the store you produced a black imitation firearm and pointed it at Bill Zhang who was working behind the front counter. You made demands for cash and stole $1900 from the register. This conduct constitutes charge 1 – armed robbery. You then ran from the store, crossed the road, got back onto the BMX and rode from the scene.

7On 1 November 2018, Ms Radford, with you as a passenger, drove to Footscray West and parked her car a couple of streets away from Sims IGA Supermarket. After parking the car, the two of you went separate ways but you immediately called Ms Radford on her phone and were talking to her. At 9.40am, Ms Radford entered the IGA and remained in there for 15 minutes whilst still speaking to you on the phone. It is alleged that during that phone call you were agitated and told Ms Radford that you were going to get money. You asked Ms Radford if anyone was inside the store and she responded ‘no, just the workers.’ You then told Ms Radford to go and get the car. At 9.55am Ms Radford exited the store.

8Shortly after Ms Radford exited, you entered the IGA. At the time you were wearing dark clothing which included a hoodie and a black mouth covering. You approached the counter in the liquor section of the store where Thanh Le was working. You produced a black imitation firearm and demanded cash from Thanh Le. You ultimately stole $1000 cash. This conduct constitutes charge 2 – armed robbery. You then ran from the store and arrived home 20 minutes later.

9On 27 November 2018 you rode a bicycle to the Caltex Woolworths in Maribyrnong. You left the bicycle at the side of the store and entered. At the time you were wearing dark clothing and a black mouth covering. Whilst inside the store you produced a black imitation firearm and demanded cash from Neaz CHOWDHURY who was working behind the counter. You stole $400 from the register. This conduct constitutes charge 3 – armed robbery. You then left the store and rode off on the bicycle.

10You were on bail at the time of each of these three offences. This conduct is the subject of the related summary offence of committing an indictable offence whilst on bail.

11On 5 December 2018, police executed a search warrant at your address, and also at Ms Radford’s mother’s address. During those searches, police found various items of clothing and two bicycles matching the descriptions of clothing and bicycles which you utilised during the offending.

12A further search was conducted at your home on 11 December 2018, and Ms Radford’s mother’s home on 12 December 2018, where further items of clothing were seized – also said to have been worn by you and Ms Radford during the incidents.

Interview and remand

13You were arrested on 5 December 2018 and participated in a record of interview. The interview was lengthy and occurred over an almost ten hour period with a number of breaks throughout. You initially denied involvement in any of the offences, and identified another person as the owner of the two bicycles which were alleged to have been used during the offending. During a break in the interview you went with police and pointed out a house where you said that the owner of the bicycles lived. When the interview resumed, you continued to maintain your denials of being involved in the offending, and maintained that you did not have a gun.

14Approximately one hour after the recorded interview ended you approached police and indicated that you had something to tell them. A further recorded  interview was conducted with you where you said that you were prepared to take police to the location of the weapon, and that the weapon was a handgun.

15You then went with police to your home address and directed investigators to an area in the backyard where a plastic zip-lock bag, containing an imitation firearm, was buried under 20cm of soil in a garden bed. The firearm was later forensically analysed and DNA statistically linked to you was found on the trigger and trigger guard of the firearm.

16At 12.26am on 6 December 2018 the interview was again resumed and you made a number of comments including that the weapon you had led police to was used in the armed robberies and that you were the person who buried the weapon in the garden bed. You did not, at any stage, make a direct admission to being the person who committed the armed robberies.

17You were remanded into custody after your arrest on 5 December 2018 and remained in custody until you were granted bail by me on 26 October 2020. I later revoked your bail on 9 June 2021, and you have stayed in custody pending sentence. As a result you have served 715 days of pre-sentence detention in respect of this matter.

Victim Impact

18Tendered on the plea as exhibits B and C were victim impact statements from Neaz Chowdury (the attendant at Caltex), and Quoc Vi Tang (a customer who was present when you produced the imitation firearm at Chemist Warehouse). Both referred to the stress and emotional trauma which they have experienced in the aftermath of the incident and their loss of feeling safe. Neaz Chowdury said ‘Everytime when I go to my workplace, if any customer taking their phone or wallet from their pocket I got so scared that it is not the same weapon used during the armed robbery.’ Quoc Vi Tang noted ‘I do not feel safe going out after dark. I do not go to shops where less people or isolated late at night unless it is necessary’.

19I have had regard to the contents of these victim impact statements.

20I note that I have not received victim impact statements from either Bill Zhang (the attendant at Chemist Warehouse) or Thanh Le (the attendant at IGA Supermarket). In their police statements, both of these victims make reference to thinking that the firearm looked fake. Despite this, Thanh Le was still overwhelmed in the aftermath of you leaving the store. I also take this into account in sentencing you.

Prior criminal history

21As revealed by the criminal record filed with this court, you have a very limited and dated prior criminal history consisting of some driving matters in 2007 for which you were fined without conviction; and some drug offences for which you received an adjourned undertaking with conviction in 2010. These prior matters have limited relevance in sentencing you for your current offending.

22You also have three subsequent matters. The first relates to the offending for which you were on bail at the time of these offences. You were sentenced for failing an oral fluid test within 3 hours of driving, burglary and theft and were convicted and fined $2000.

23The second relates to offending committed in February 2021, whilst on bail for these offences, which included possession of various drugs of dependence (1, 4-Butanediol, heroin and methamphetamine), stating false name and address, speeding, unlicensed driving and committing an indictable offence whilst on bail. You were also in breach of three of your bail conditions being your curfew, the prohibition on possessing drugs, and the prohibition on possessing more than one mobile phone. You were sentenced to an aggregate term of 13 days’ imprisonment time served on the drug and bail offences, and were fined an aggregate sum of $750 in respect of the other offences.

24The third relates to offending committed in June 2021, again whilst on bail for these offences. On 7 June 2021 you pleaded guilty to two charges of dishonestly receiving stolen goods (being a jet ski and trailer, and copper wire), one charge of committing an indictable offence whilst on bail and four charges of breaching a conduct condition of bail – namely failing to undertake four weekly drug urine screening tests between 18 April 2021 and 15 May 2021. You were sentenced to 7 days’ imprisonment, with 5 days pre-sentence detention being reckoned as already served. It was in the aftermath of being released from this term of imprisonment that the prosecution made the application to revoke your bail, which I granted.

25In considering the sentence to be imposed on the armed robberies, I cannot, and do not intend to, further punish you in respect of your subsequent offending. However your subsequent offending, especially the offending which occurred whilst you were on bail for the current offences, does have relevance to my sentencing task as it impacts upon the assessment of your prospects of rehabilitation and the weight which I might give to rehabilitation as a sentencing purpose.  I will return to this issue in due course.

Gravity of the Offending

26Turning now to the gravity of the offending.

27As submitted by prosecuting counsel and conceded by your counsel, your offending was serious. It is not in dispute that you offended against soft targets, that you wore clothing which was designed to disguise your appearance, that your use of an imitation firearm caused fear and lasting impact for some of the victims of your offending, and that you committed these offences whilst on bail for other offending. You also committed three offences within a short time frame, and cannot be sentenced on the basis that this was a one-off incident.

28However I do accept that your offending was not aggravated by physical assaults, and I agree with prosecuting counsel that your offending can be seen to fall within the mid-range of seriousness for this kind of offence rather than at the higher end.  The sentencing purposes of deterrence (both general and specific) and denunciation must be given weight in the sentencing synthesis given the nature and gravity of your offending.

29As a matter of completeness I note that because I consider that your commission of these offences whilst on bail is an aggravating feature of the offending, any sentence which I impose on the related summary charge will be served concurrently in order to avoid double punishment on that offence.

Guilty Plea and Remorse

30It was submitted by your counsel, and conceded by prosecuting counsel, that despite the period of time which has passed since you were first arrested and charged, and despite having run a contested committal in this matter, your plea should still be considered to be an early plea of guilty. I am told that you made an offer to resolve this matter in the same terms as the current resolution at the contested committal hearing in September 2019, however that plea offer was rejected. A resolution on the basis of the current indictment only became available from the prosecution perspective in December 2020, and you immediately indicated your intention to plead guilty to these three charges.

31Further, despite running a contested committal, you did not seek to have your victims cross-examined and they have been spared from having to relive the events through the process of giving evidence. Your plea has saved the cost and time of a trial being conducted. The value of that plea is also enhanced in the current circumstances of the pandemic which is causing unprecedented disruption to the smooth running of the justice system. Accordingly, I am of the view that your plea both facilitates the course of justice and is of significant utilitarian benefit.

32Your counsel submitted that I should also be satisfied that you have demonstrated genuine remorse for your offending, as evidenced by your ultimate admissions in your record of interview – including leading the police to the imitation firearm; your early efforts to resolve the matter; your pleas of guilty; and your candour with all of your family members in respect of this offending.

33Prosecuting counsel accepted that a degree of remorse is demonstrated through your plea and the timing of your plea, but disputed that genuine remorse is evidenced through your responses in your record of interview. In particular Mr Cookson pointed to the fact that although you led police to the imitation firearm, you continued to maintain you were not the person who used it. You also told police that ‘JP’ was the person who had ridden the bicycles used in the offences.

34Ultimately, I accept that whilst you were not completely forthcoming in your record of interview, your guilty plea is indicative of remorse and acceptance of responsibility. Your remorse and acceptance of responsibility is also further evidenced through your conversations with Dr Sakdalan, Forensicare psychologist, and Sam Argus, Community Corrections Officer, as detailed in their respective reports to the Court.

35Overall, taking each of the above matters into account, I accept that you are entitled to a substantial discount on your sentence by reason of your plea of guilty, and your remorse and acceptance of responsibility for your offending.

Personal Circumstances

36You are now 36 years of age.

37You were born in Poland, and are the oldest of three children to your parents Leszek and Elona. Your youngest sister Anna is now 24 years of age and works at a drug rehabilitation facility, whilst your other sister, Alice, is 35 years of age and is a nurse. You have a close relationship with your mother and your sister Anna – both of whom were present and gave evidence on your behalf on the plea. Your relationship with your father has been more difficult and, as a child, you were both witness to, and the subject of, domestic violence committed by your father.

38You and your family immigrated to Australia, to be with your recently widowed grandmother, when you were 14 years of age.  You found your first two years in Australia to be a culture shock and struggled to adapt to living in a new country. You initially attended a course at a language centre for three months and then moved into Year 8 at high school. You continued to attend school until part-way through Year 12 but found you had difficulties concentrating and could not sit still in class.

39Whilst at school you met Ms Radford, with the two of you initially being childhood friends and later developing a relationship. You also worked a number of jobs including newspaper delivery, stocking supermarket shelves, and working in a computer store. By the time you left school you were working after school most days of the week and were earning a good income.

40When you were 17 years of age you left school and enlisted in the Army as a combat engineer. You trained in various parts of Australia, moving every six months or so. Your role in the army was intended to encompass building bridges, clear mining and working in construction. It was not intended that you would participate in any planned combat. Whilst still in Australia, you commenced using heroin on a recreational basis with your fellow soldiers.

41Once your training was complete you were stationed overseas for a period, spending time in both Germany and Afghanistan. Whilst in Afghanistan, you witnessed multiple deaths on both sides by gunfire, explosions and Taliban attacks. It was during this period overseas that your heroin use increased to the point where you were using daily to help manage your anxiety and to block things out to sleep. Those in command eventually found out and you were discharged from the army at 22 years of age.

42On your return to Australia you completed two years of a baker’s apprenticeship, before transferring roles to that of a baker’s labourer. At 26 years of age you commenced working as a roadside assistance technician, and continued with this work for 4 years until the company you worked for closed down. You then went on to undertake various other casual employment roles, but were unable to maintain long-term full-time employment.

43Throughout the entirety of this time you continued to abuse substances – initially heroin and then other illicit substances including cannabis and methamphetamine. In approximately 2014 or 2015 you attempted suicide by hanging. You continued to use substances heavily in the aftermath of that attempt, and have reported that at times you hoped you would not wake up. Despite these ongoing issues you did not at any point prior to your remand in 2018 undertake any mental health treatment or treatment for your drug abuse issues.   Indeed, on your report, your offending occurred in the context of you being substance-affected and was spurred by your need to obtain funds to sustain your substance use.

44As previously noted, I released you on bail with strict conditions on 26 October 2020. At that stage you had already spent just short of 2 years in custody and were facing a lengthy delay until trial. Your bail conditions included a requirement that you undertake weekly drug urine screens amongst other things. Whilst on bail, each of the drug urine screens you undertook were clean – which is a significant achievement given the extended period of time for which you have been abusing drugs. Of course there were some periods where you did not undertake screens and I cannot know for sure whether this coincided with any relapse into drug use. What is apparent is that both sets of offending which occurred whilst you were on bail occurred in periods where there had been some trailing off in compliance with your bail conditions.

45Whilst on bail you also obtained a mental health care plan, and according to medical progress notes which were tendered on the plea as exhibit 2 you were placed on the waitlist to access a psychologist. It is apparent from those records that you were keen to access treatment and were frustrated by your inability to obtain psychological assistance. It is also apparent from those notes that you were experiencing some symptoms consistent with mental health issues whilst on bail.

46Given the factual matters which were raised at the first listing of the plea, and the content of those progress notes, I adjourned this matter for a further plea hearing and ordered a Forensicare psychological assessment. That assessment was conducted by Dr Joseph Sakdalan, who is a senior clinical psychologist, and a report dated 16 June 2021 was provided to the court.

47In Dr Sakdalan’s opinion your upbringing – and in particular your exposure to domestic violence, sexual abuse and emotional deprivation – has caused you to develop a poor sense of identity, poor self-esteem and self-confidence, attachment issues and problems with emotional regulation. Further you exhibit symptoms consistent with Attention Deficit Hyperactivity Disorder (‘ADHD’), which in Dr Sakdalan’s opinion possibly explains the difficulties you experienced at school. Dr Sakdalan noted that your ADHD symptoms such as poor impulse control, disorganisation, and concentration difficulties seem to have persisted into adulthood.

48Additionally, Dr Sakdalan is of the view that you are also suffering post-traumatic stress symptoms which developed when you were in the Army as a young man and have been subsequently untreated and undiagnosed. He linked your substance abuse issues and your untreated trauma symptoms, noting that your substance use issues developed as a maladaptive way of coping with your mental health issues. This in turn has contributed to your offending – with you offending in order to sustain your substance use.

49In Dr Sakdalan’s opinion it is important that you undergo further psychological and psychiatric assessment to formalise the above diagnoses and to determine whether you would benefit from psychiatric medication. Further he recommends that you receive offence-related and offence-specific treatment, psychological treatment, and assistance with your substance abuse issues. In Dr Sakdalan’s opinion your risk of general offending is high – with your main risk factors being your mental health issues, relapse into substance use and limited pro-social supports. Your prospects for rehabilitation will obviously be enhanced by engaging in treatment to address those risk factors – something which Dr Sakdalan states you have indicated a willingness to do.

50On the further plea, Mr Barker conceded that the psychological report does not raise any Verdins issues – that is your mental health issues should not lead to a mitigation of penalty by way of reduced moral culpability, any impact of your mental health upon your time in custody, or reduction in the weight to be given to specific or general deterrence.

51However, your mental health issues and corresponding substance abuse issues are still relevant to the sentencing exercise in this case in two ways. Firstly, they provide context as to how someone with limited prior convictions has ended up committing three armed robberies at 34 years of age. Secondly, the inter-relatedness of your mental health issues with the development of your drug abuse issues; your lack of any previous treatment for either; and your current insight into your issues and willingness to engage in treatment to address them; are all factors which bear upon your prospects for rehabilitation, and upon the manner in which a sentence may be structured to facilitate that rehabilitation and community protection into the future. This latter point was conceded by Mr Cookson on the further plea.

Prospects of Rehabilitation and Community Protection

52Mr Barker submitted on your behalf that I should consider your prospects of rehabilitation to be good. He based this submission on a combination of factors being your limited prior history; the extended periods of abstinence from drug use which you have been able to sustain whilst on bail; extended periods of compliance with bail conditions – albeit he conceded that there had been some breaches; your re-connection with family members as attested to by your mother and sister during their evidence on the plea; your history of employment; and your willingness to engage in treatment. Mr Barker did concede that this submission was weakened, to a certain extent, by your commission of two sets of offences whilst on bail, but further submitted that to date your rehabilitative efforts have been conducted under your own steam, without support, and with no knowledge of, or treatment for, your underlying mental health issues. Further, he submitted that your re-offending, unlike the current matter, was not serious violent offending.

53By contrast, Mr Cookson submitted that your prospects of rehabilitation should be considered to be guarded at best. He submitted that I should pay particular regard, when assessing your prospects for rehabilitation, to your inability to remain offence-free and fully comply with your bail conditions over the past 8 months in circumstances where you had experienced a significant period of time in custody prior to being placed on bail – which should have acted as a significant deterrent.

54Having considered all of the material before the court and the submissions of both parties I am of the view that you do have reasonable prospects of rehabilitation. You have a limited prior history, ongoing family support, motivation to change, and have already shown that you do have an ability to make some inroads into your rehabilitation on your own. However it is also clear that your prospects of rehabilitation are firmly interlinked with you remaining drug free and engaging in treatment for your mental health issues, and that you will need long term ongoing support and treatment of the various types identified by Dr Sakdalan to ensure rehabilitation and community protection into the future.

Impact of COVID-19

55During the periods that you have been in custody, you have been impacted by the COVID-19 pandemic in a number of ways. During your initial period in custody you experienced lockdowns and the impact of various other restrictions including reduced access to programs, education, exercise, employment, and face to face family visits, and restrictions on property being able to be delivered or sent in. Upon the recent revocation of your bail you were additionally subjected to strict quarantining measures, and are now, again, subject to restrictive conditions in custody due to the recent state-wide lockdown in the community. I accept that these restrictions have made the time you have already spent in custody on remand more onerous than it would have been in non-COVID times.

56Further, I accept that being in custody during the pandemic, and in circumstances where your various remands have coincided with a number of outbreaks of the virus in the community, has caused additional stress for you in respect of concern for your health should the virus spread in prison, and concern for the health of your family members and partner in the community.

57I take this added burden of imprisonment into account.

Current Sentencing Practice and Comparable Cases

58I was referred to a number of cases by both counsel where the offender was sentenced for either an armed robbery or multiple armed robberies, the victims were soft commercial targets, and a plea of guilty had been entered.[1] The sentences imposed ranged from sentences which combined a short period of imprisonment with a CCO, through to a head sentence of 8 years and 6 months with a non-parole period of 6 years. Each of the cases I was referred to turned (as they must) on their own facts, which are different from the facts in your case, and the sentencing Judge’s intuitive synthesis of those facts in light of the applicable sentencing principles. As such, the previous cases to which I was referred are of assistance as examples of the application of the relevant sentencing principles applicable in the area, but otherwise can be no more than yardsticks that may be able to illustrate (although not define) the possible range of sentences available.

[1]    Mr Cookson referred me to Walker and Dargan [2019] VSCA 137; DPP v Stevens [2013] VSCA 187; R v Scholes [2007] VSCA 303; Shok v R [2020] VSCA 294; Dhal v The Queen [2020] VSCA 90; Lyddy v The Queen [2019] VSCA 35; and Younan v The Queen [2017] VSCA 207. Mr Barker referred me to DPP v Winder [2018] VCC 1573; DPP v Boulton [2021] VCC 972; DPP v Campbell [2017] VCC 792; DPP v Dos Santos [2015] VCC 384 and DPP v Tufuga [2016] VCC 599.

59Ultimately, whilst I have had regard to previous sentences imposed, including each of the cases to which I was referred, and the issue of comparative sentencing and current sentencing practices more broadly, I have sentenced you in this case on the basis of the application of the principles to the specific facts of you and your case.

Sentencing submissions

60Mr Barker submitted that given all of the circumstances in this case, a term of imprisonment combined with a community correction order would best meet the punitive and deterrent aspects of sentencing whilst allowing the court to fashion the period of support and the types of support required for rehabilitation and protection of the community.

61Whilst Mr Cookson, on behalf of the prosecution originally submitted that a term of imprisonment with a non-parole period was the only sentence open to the Court in this case, on resumption of the plea, and after the receipt of the Forensicare report, Mr Cookson submitted that in terms of realistic options available to the Court in sentencing, the court had either the combination of a term of imprisonment and a corrections order, or a term of imprisonment with a parole period. However, he submitted that a term of imprisonment with a non-parole period would stand as the better of the two alternatives, given the supervision, sanctions and flexibility which apply to parole.

Availability of an Aggregate Sentence and a Community Correction Order

62Following counsel’s submissions I had you assessed for a community correction order and you have been found suitable to complete such an order should I deem it appropriate for a combined sentence to be imposed. The assessing officer – Mr Sam Argus – said you engaged in the assessment in a polite manner, were open to sharing information around your offending and substance use, and offered some insight and remorse for your offending. Mr Argus recommended that I impose supervision and judicial monitoring conditions on any order I impose, in addition to treatment conditions.

63In determining the sentence to be imposed in this case, I must have regard to the principles of totality and parsimony. The principle of parsimony requires that I not impose a term of imprisonment if the sentencing purposes can be met by another, less punitive form of sentence. Applying the principles of parsimony to this case, the question arises – is it necessary to achieve all of the sentencing purposes of this case for a term of imprisonment with a non-parole period to be imposed, or can the combination of a term of imprisonment and  a community correction order adequately meet each of those sentencing purposes? In my view, it is not necessary for a term of imprisonment with a non-parole period to be imposed, especially in circumstances where you have already spent almost two years in custody. I am of the view that a term of imprisonment, longer than that which you have already served, combined with a community correction order of some length and with appropriate supervision and treatment conditions attached, can adequately meet the purposes of deterrence, denunciation and just punishment, whilst also providing the best opportunity for rehabilitation and community protection into the future.

64Finally, in respect of the period of imprisonment to be imposed, it was correctly submitted by Mr Cookson that section 16(3C) of the Sentencing Act applies to charges 1, 2 and 3, given that each of those offences was committed whilst you were on bail. As a result, the usual presumption of concurrency does not apply, rather any term of imprisonment imposed on each of charges 1, 2 and 3 must be served cumulatively on any other sentences of imprisonment imposed unless otherwise directed by the Court. This provision does not, however, prevent the imposition of an aggregate sentence in an appropriate case. Given the circumstances of this case, where I am sentencing you for three offences committed within a time frame of less than one month of each other, and where the offences are all armed robberies of the same character, I am of the view that this is an appropriate case for an aggregate sentence to be imposed on charges 1, 2 and 3. Accordingly, I intend to impose an aggregate sentence on those charges, and direct otherwise than in conformity with section 16(3C).

Sentence

65Mr Pilichowski, having taken all of the above matters into consideration I sentence you as follows.

66On charges 1, 2 and 3 – being 3 charges of armed robbery – you are convicted and sentenced to an aggregate term of imprisonment of 2 years and 6 months. Additionally, you will be placed on a community correction order for a period of three years which will commence upon your release from custody. The conditions on the order will be the mandatory conditions as the following special conditions.  You must report to the Sunshine Justice Service Centre via telephone within two clear working days of the commencement of this order.

67So what that means is that you have got just over six months to go on the sentence.  Once you are released you have two days.  So if you are released on the Wednesday you need to have reported to Corrections by phone by 4 pm on the Friday.  Do you understand how that works?  All right.  Unmute.  Yes, all right, we will just get Mr Pilichowski unmuted.  I did see you nod though.  You must be under the supervision of a Community Corrections officer for the period of the order.  You must undergo assessment and treatment, including testing for drug abuse or dependency as directed.  You must undergo mental health assessment and treatment as directed, which includes referral to, and engagement with, a psychiatrist for formal assessment and diagnosis of potential ADHD and PTSD, and you must reappear at court for a review of your compliance with the order as directed by the court.  That is also known as judicial monitoring.  It means you come back before me so that I can see how you are going on your order, all right.

68Your first review will be at the County Court at Melbourne at 9.30 am on
24 February 2022.  So you should be released, depending on whether you get any benefit for the time you have been locked down during COVID some time either in very late December or partway through January.  I do not know whether you will get any credit or not for the times you have been locked down.  If you serve every day of the period of imprisonment that I have given you with no reductions it will be some time during January that you are released, and then you would come to start your order and you would come to court on 24 February so I can see how that first bit of the order has gone, all right?

69All right.  On the related summary charge of committing an indictable offence whilst on bail you are convicted and sentenced to a term of imprisonment of one month, such term to be served concurrently with the term of imprisonment imposed on Charges 1, 2 and 3.  So the total effective sentence is a term of imprisonment of two years and six months, followed by a community correction order which will run for a period of three years.

70The period of 715 days pre-sentence detention not including today's date is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the records of the court.

71We have got Mr Pilichowski off mute yet or not?  We cannot do it.
Mr Pilichowski, from your end can you get yourself off mute?  You may need some assistance from somebody to do that because we cannot do it from our end.

72MR BARKER:  Mr Pilichowski, there should be a button in the bottom, left and it will say, 'unmute'.

73HER HONOUR:  Yes.  I think, Mr Barker, they do not always have access on the ones provided by Corrections.  I think there is a limitation on what they can do with the screen.

74MR BARKER:  All right.

75HER HONOUR:  There we go.  We have - - -

76MR BARKER:  Special Apple addition but - - -

77HER HONOUR:  That was a very strange angle, that one.

78MR BARKER:  I think that went through the slot in the door.

79HER HONOUR:  All right.  If we cannot get that mute off we might have to go by hand signals but we will see how it - well, all right, we have got a thumbs up, all right.  So what I am going to do, Mr Pilichowski, is I am just going to tell you a couple of things about the Corrections order, and if you understand, if you could give me a thumbs up and we will record that, I will say that you have done that, all right.  So, Mr Pilichowski, you have heard the conditions I have placed on the community correction order.  Do you understand all of the conditions?

80Thumbs up, all right, good.

81I must tell you that if you do not comply with the requirements of the order or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on your order by Corrections and the matter will be brought back before me.  One of the potential outcomes if you breach the order is that you may fall to be resentenced and may face a further term of imprisonment.  Do you understand that?

82All right, good.  I have got another thumbs up.

83Given all of those matters which I have told you and the conditions which apply, do you consent to undertaking that community correction order?

84All right, I am getting a nod and a thumbs up.  Thank you.

85All right, now, pursuant to s.6AAA of the Sentencing Act I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today, and being convicted of them, you would have been sentenced to a term of imprisonment of six years, six months with a non-parole period of four years, six months.

86Pursuant to s.78(1) of the Confiscation Act 1997 Victoria, I make a disposal order in respect of a mobile phone, two bicycles and the imitation handgun, which were all seized in this matter. That covered all of the ancillary orders,
Mr Cookson?

87MR COOKSON:  Yes, Your Honour.

88HER HONOUR:  All right.  Are there any other matters that either of you, counsel, wish to raise to raise at this stage in respect of either the sentence or the reasons for sentence?

89COUNSEL:  No, Your Honour.

90MR BARKER:  I wanted to express gratitude for Your Honour's assistance in relation to this matter and being quite flexible with what is going on and with the Forensicare report a couple of months ago and all of those matters.  I have discussed it with Mr Pilichowski and we are both grateful.

91HER HONOUR:  All right, thank you.  What I - speaking of the Forensicare report, Mr Barker, what I was intending to do was to provide a copy of that report to the prison authorities so that they can hopefully commence appropriate referrals for Mr Pilichowski whilst he is still in custody.  Is there any problem with me doing that from your perspective?

92MR BARKER:  No, Your Honour, there is not.

93HER HONOUR:  All right.

94MR BARKER:  I just do not know whether authorisation from the author is required, because when we have - he is - Mr Pilichowski is mistaking himself as the author.

95HER HONOUR:  Mr Pilichowski is happy.  Yes, yes.  No, we do not.

96MR BARKER:  That is a matter for Your Honour.

97HER HONOUR:  Not when it is a Forensicare report we do not need that, because it has been done for the court's purpose but then also they are aware that it can be passed on to the prison authorities as well or the Parole Board or whoever else.  All right.  Is there anything further then?

98MR BARKER:  No, Your Honour.

99HER HONOUR:  All right.  So, Mr Pilichowski, I know you have still got a little bit of time to go in custody but what I am hoping is that when you are released you will be able to get going on this community corrections order and then what we will have is smooth sailing for that three year period.  You are coming in to see me every so often and getting good reports on how everything is going, all right?  All right, I have got the thumbs up again.  All right.  Now, I was going to give you some time to speak to Mr Barker but I am not sure how that is going to go given you cannot speak, but what I will do is I will allow you to at least,
Mr Barker, speak to Mr Pilichowski once I step off the Bench.  I am not sure you are going to get much of a reply though, apart from thumbs up or thumbs down, but we will give you that opportunity anyway.

100MR BARKER:  I am grateful, Your Honour.

101HER HONOUR:  All right.

102MR BARKER:  It might be a more relaxing discussion.

103HER HONOUR:  All right, thank you.

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