Director of Public Prosecutions v Rozynski

[2015] VCC 1406

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

AT BAIRNSDALE
CRIMINAL JURISDICTION

CR -15-00647

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE ROZYNSKI

---

JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Bairnsdale
DATE OF HEARING:	1 October 2015
DATE OF SENTENCE:	1 October 2015
CASE MAY BE CITED AS:	DPP v Rozynski
MEDIUM NEUTRAL CITATION:	[2015] VCC 1406

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ginsbourg	Office of Public Prosecutions
For the Offender	Mr A. Marshall	Victoria Legal Aid

HIS HONOUR:

1Luke Rozynski, you have pleaded guilty to one count of aggravated burglary, maximum penalty, 25 years' imprisonment; and one count of common assault, maximum penalty, five years' imprisonment.

2The circumstances of the offences were set out in the Crown opening which was read in open Court earlier today.  I incorporate by reference the Crown opening.

3

Essentially the complainant in this matter was Daniel O'Doherty, who you had apparently lived with at some stage, and then after you had left that particular address and been in prison for other offences, you returned to that address.  You rang him up one night on the date of the offending at about six o'clock, abusing him, accusing him of doing things.  He hung up after you asked him where he was, and then at 11.30 that night, you went around there, banged on the door and proceeded to barge into the house after smashing two glass panels of the door.  At the time you were armed with a knife. Which

Mr O'Doherty was so scared when you arrived, that he armed himself with a meat cleaver.  There was a short struggle on the couch and then you proceeded to go and check the bedroom that you used to live in, and eventually you calmed down and you went outside.  At that point

Mr McDonald came in, he was now living in the premises, and you left.  Subsequently you were arrested.  You were interviewed by the police the next day and they seized a small knuckle knife.  There was blood left everywhere around the house and in the bedroom, which was a result of you cutting your finger, when breaking the glass panel of the outside door.

4Both Mr O'Doherty and Mr McDonald have filed victim impact statements, both of them indicating, particularly Mr O'Doherty, that he suffers anxiety as a result of the offending and he fears repercussion as a result of your offending.  Mr McDonald is in effectively the same position.

5Your counsel, Mr Marshall, sought to attack, particularly Mr McDonald's victim impact statement, effectively suggesting that he had over-egged the victim impact statement.  I reject that criticism of the victim impact statement.  Clearly it would have been frightening for both, in particular Mr O'Doherty, but also Mr McDonald, for you to barge into that house when you had no right to go in there. 

Seriousness of the offences

6This major offence of aggravated burglary, this is what is called an ex-relationship-type burglary, and it was a serious offence and your counsel did not dispute that.  The Court of Appeal has said on a number of occasions that this type of offending is prevalent and it should be discouraged by the sentences of the Court.  You bear high moral culpability for it.  There was remeditation in that you had rung up Mr O'Doherty that evening and then carried a knife around there and he tried to resist you, but you went in anyway.  So, high moral culpability.  The assault was at a lower level, but it is all part and parcel of the overall offending. 

7I turn to your prior convictions.  They are extensive.  It is clear that literally in the last couple of years you spent most of that time in prison and you have currently spent 15 and a half months' pre-sentence detention in relation to this particular offending and before that you had been in prison for about four months and then sometime before that you had been in prison effectively for 12 months in two breaks after you had breached a suspended sentence.

8You have prior convictions for violence, and you also have a number of prior convictions for breaching a community corrections order or suspended sentences.

9The last offending for which you were dealt with was using threatening words, wilfully damaging property and unlawful assault, so effectively the same types of offending that bring you before this Court, with a 42 day sentence of imprisonment concurrent, but at the same time, on counts of possessing cannabis, driving whilst suspended (2 counts), theft, theft from a motor vehicle, possessing a substance and trafficking a drug of dependence, a previously suspended sentence was reinstated of 125 days, and there was in April 2014, breaching an alcohol interlock device and one month's suspended sentence, and prior to that there was contravening a family violence order.

10Your counsel put that your offending had in more recent years reduced, and I accept that, but still there is a number of offences in the last five years involving theft, dishonesty and intentionally causing injury as well as resisting police and assault and assault with a weapon.  So you have got a pretty bad criminal record for a 33 year old and that makes, as I said, your moral culpability higher.  Your offending also does indicate you have had problems with drugs and, as I said, antisocial behaviour such as, failing to comply with licence disqualifications.

11In sentencing submissions by your counsel, Mr Marshall, he put that effectively this called for a rehabilitative disposition, and in particular he submitted that given the period of pre-sentence detention and the guideline judgment in Boulton, then all the interests of the community in sentencing, namely general deterrence, specific deterrence, retribution, rehabilitation can be achieved with a community corrections order. 

12He also put, relying on a report from Mr Jeremy Parker, nearly two years old now, a psychological report that indicates that you do have some cognitive deficiencies which put you in the low performing area in the community.  In addition to that, he indicates that you have a mild intellectual functioning deficiency, anxiety, depression and stress at a high level.  At that point you were on antidepressants, you are currently still on some form of antidepressant, and he indicates in that report that people with significant cognitive defects struggle with resolving problems, causing them to be easily frustrated, angry and depressed, and in the record of interview you asserted that there was some issue of property of yours still left at the premises and also a suggestion in relation to Mr O'Doherty whether he had been on with your ex-girlfriend. 

13Clearly, you were not entitled to do what you did, but it would give some explanation for your offending - this inability to properly respond to stressful events, resulting in anger and assault as well as barging into this property.

14Mr Parker indicates that you really need alcohol and drug counselling and psychological counselling to minimise your risk of reoffending.  That was two years ago.  Really, nothing has changed since that report.  The only thing that has changed is that you have been in prison for 15 months, and in addition to that, Mr Marshall tendered in particular one certificate from the drug rehabilitation provider in the Metropolitan Remand Centre which indicates you have successfully completed two drug and alcohol programs and you have also completed some vocational programs in the period that you have been in prison.

15So in terms of what I am going to do in terms of sentencing considerations, I have taken into account, and I incorporate by reference, paragraphs 25, 27 and 30 of Boulton.  I have also taken into account the submissions by the prosecutor. 

16I regard your prospects of rehabilitation as clouded, because you have been in prison for a considerable period, when you add the fact that you had only been out for four or five days, when this offending occurred.  You were obviously intoxicated at the time of the offending, you have got cognitive problems, you have not got any work skills, you have been on some form of benefit most of your life, and you need to address the problems of drug and alcohol.  Mr Marshall put that it is in the community interests that you be rehabilitated, and he submitted that really a straight sentence with a non-parole period would not give you the supports - would not be in the community interests. 

17The learned Crown prosecutor submitted that this is serious offending and that the period that you had currently served might amount to a period of a minimum term for a sentence. 

18So weighing all those matters, I have determined to impose a community corrections order on you, taking into account the period that you have been in custody, and the conditions on the community corrections order are designed to put you under supervision for the next 18 months and to ensure that you can successfully rehabilitate yourself and come back into the community and not reoffend, which you have been doing all too regularly in the past. 

19

So, the way I am proposing to do it, and it has been explained to you by

Mr Marshall, is, first of all, you have got to turn up at the Community Corrections Office next Monday.  That is very important because they have got the report of Mr Parker, but they have got to put you under their wing from Monday.  So that is the first thing.

20The second thing, I am imposing a non-contact condition in relation to the two complainants for the next 18 months.

21The third condition is that I am putting a requirement that you stay with one or other of your sisters for the next 60 days unless you can get the written permission of the Office of Corrections.  So that means you are under their roof, one or other of your two sisters, and one of them is here today, for the next 60 days, and then if you want to change your address after that, you have got to give notice to the Office of Corrections and if, within the 60 days, you get kicked out of there, you have got to get the address approved by the Office of Corrections.  So they want to know where you are living for the next 60 days.  I am putting a curfew on you for the next 60 days, that you have got to be in that address between 9 pm and 7 am.  So that means you are not to be out on the town effectively, to ensure that you will not relapse into drug or alcohol use. 

22I expect that the Office of Corrections will place you into some form of drug and alcohol program and programs to reduce your offending behaviour.  In other words, anger management, that type of thing, productive life programs.  They have got a number of programs there.  So on Monday that is what I expect the Community Corrections people to do.

23It is important that I explain to you that placing you on the community corrections order is in the community interest, but it is also a serious sanction, because if you breach any of the terms of that order, do not turn up on Monday or do not turn up at appointments that they direct for you, or do not turn up on courses that they have enrolled you in, that breaches the order, or fail to comply with the curfew or move house without telling them, that is all a breach of the order.  That is a criminal offence.  It carries a three month gaol sentence.

24

In addition, if you do commit any offence in the next 18 months while you are on this community corrections order, that also breaches the order and you will be dealt with for that offence and then brought back to resentence - you will be dealt with for that offence, you will be dealt with for breach of the community corrections order and that triggers the ability to be resentenced for these principal offences.  So that is hanging over your head for the next

18 months and that combination, given that you have served 15 and a half months, I regard as being sufficient to evidence the community's denunciation for your conduct and deter, both generally, giving a signal to anyone else who might be minded to do this type of thing, and specifically deter you, knowing if you reoffend, you are going to get a very much more significant sentence than you have got than this sentence here, because you keep recidivating.  You are out five days and you committed these offences.

25Mr Marshall has explained the terms of this community corrections order to you, and you will get a copy of it.  I can only reiterate that you have got to try and comply with it, and if you do not comply with it, then you are going to be seen back here and you will be spending some more time in the prison system, and no doubt you have not found it very good to date.

26I commend you for what you have done so far to try to address your drug and alcohol problems in prison and getting some vocational skills, but prison is a different place than out in the community. 

27The prosecution have sought a disposal order for that knife, and you told the police that you carry the knife all the time.  We live in a society where people are not entitled to carry knives and they do not need to carry knives.  That is just stupidity of the highest order and totally unacceptable.  If you get caught carrying a knife again, an offensive weapon of any type, that will breach the order, so I am ordering that that knife be forfeited, the disposal order.

28I am also ordering that you provide a forensic sample, a saliva sample to the police, within 28 days attend at the police station and provide them with a sample.  If you do not do that, a mouth scraping, then that again breaches the order the they are entitled also to use reasonable force to obtain that order from you.

29The formal sentence of the court is that:

30On

Charge 1, you are sentenced to 472 days' imprisonment and an

18 months' community corrections order commencing this day.

31I declare that you have served 472 days' imprisonment.

32On Charge 2, I am ordering that you be sentenced to three months' imprisonment concurrent with the other sentence.

33I have explained to you the community corrections order which commences this day and goes until 31 March 2017 with the terms that I have explained previously to you.

34I declare that had you not pleaded guilty, I would have sentenced you to three and a half years' imprisonment with a non-parole period of two years and eight months.

35I also indicate that I have taken into account your plea of guilty.  It was late but it does have utilitarian benefit, so I have taken that into account.

36I have also taken into account the fact that you have got the support of your two sisters and they are prepared to put you up at least for the next 60 days, so it is important that you have stable accommodation and get into a stable position in the community.

37Any other matters, Mr Ginsbourg?

38MR GINSBOURG:  No, Your Honour..

39HIS HONOUR:  Mr Marshall?

40MR MARSHALL:  No, Your Honour.

41(Community corrections order signed and acknowledged.)

42(Disposal order signed and acknowledged.)

43(Section 464ZF order signed and acknowledged.)

44HIS HONOUR:  All right.  I have signed all the relevant documents.  I want to thank counsel for their assistance in this matter.

45MR GINSBOURG:  If Your Honour pleases.

‑ ‑ ‑