R v Golonski

[2015] NSWDC 402

District Court

New South Wales

Medium Neutral Citation:	R v Golonski [2015] NSWDC 402
Hearing dates:	12, 17 November 2015; 17, 18 December 2015
Date of orders:	23 December 2015
Decision date:	23 December 2015
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	See paragraphs [45]-[46]
Catchwords:	CRIMINAL LAW – particular offences – property offences – numerous break enter and steal offences – theft of meat, motor vehicles, firearms and clothing; CRIMINAL LAW – sentence – relevant factors – full confession to police - finding that offences are lower end of the range of objective seriousness - early plea of guilty – expression of remorse - subjective features – extensive criminal history – offender aged 42 – offender spent most of adult life in prison – risk of institutionalisation – poor prospects of rehabilitation - addiction to ice – homeless from 15 years old – limited family support – minimal history of employment - poor record of compliance with parole – experience of protective custody - aggregate sentence of 6 years imprisonment with non-parole period of 4 years imprisonment imposed – s166 matters
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Category:	Sentence
Parties:	Regina (Crown) Jason Golonski (Offender)
Representation:	Counsel: Mr L Shaw (Crown) Mr W Walsh (Offender)   Solicitors: Ms T Hennessy (for Director of Public Prosecutions (NSW))
File Number(s):	2014/277462
Publication restriction:	None

Judgment

1. I am sentencing Jason Golonski. He is a man who, his counsel says, has had a tragic life. But he has also committed a lot of crimes during that life. They include the three crimes that I am sentencing him for today as well as a series of other crimes that I am asked to deal with.

2. First I should say what the crimes are. He has committed two offences of break, enter and steal. They are crimes against s 112(1) of the Crimes Act 1900. Each of them carries a maximum of 14 years imprisonment. The third crime I am sentencing him for is a more serious version of the same offence. It is an aggravated break, enter and steal. On that occasion he broke in when people were at home. Parliament regards that as even more serious and has fixed a maximum of 20 years imprisonment to that offence. Not only that, Parliament has fixed a standard non-parole period of five years to that offence.

3. It is important for a judge in sentencing someone to say something about what happened to bring about the offences so that an assessment can be made of how serious an example of the crime that particular offence is. The judge also says something about the offender so that the offender’s personal circumstances are taken into account as well as the crime that the offender committed.

4. In September, during almost all of September last year, Jason Golonski went on a spree of stealing. He was addicted to the drug known commonly as ice. He had a ready supply of it and was really out of control for some weeks. Briefly, this is what he did.

5. Starting towards the beginning, on Friday 5 September 2014, he stole a car. He was driving the car a few days later again but was disqualified from driving at the time, so he committed another offence of driving whilst disqualified.

6. About a week later, Thursday 11 September, he stole some meat from a farm shed on a property in Nashdale, which is not far from Orange where Jason Golonski came before me for sentencing when I was sitting there on circuit last month. That was an offence of stealing from a dwelling.

7. Next he committed one of the crimes that I am actually sentencing him for, a break, enter and steal. There was a property known as ‘Ashbrook’ in Nashdale. There was a shed where the owner kept a Harley Davidson motorcycle. The owner also kept locked gun safes. Jason Golonski broke in and stole nine firearms from one of the gun safes. All of those firearms are listed in exhibit A, tab 4. He also took some ammunition, as well as some clothing - a black leather motorcycle jacket with a Harley Davidson pin. The value of the property he stole on that occasion was some $30,000.

8. He stole another car and drove it, therefore committing two crimes: stealing a car and driving whilst disqualified. He also committed an offence of having goods in custody.

9. Around the same time, he committed the offence of larceny on a property in Lindhurst. He stole things like alcohol and keys and coins and a watch. This time the amount of property he stole was worth about $4,000.

10. Again he stole another car a few days later and drove it, thereby committing the offence of stealing a motor vehicle and driving whilst disqualified.

11. Another offence of break, entering and stealing occurred a few days later in Cowra. This time he actually broke into a property and used it to shower and change and sleep in. He helped himself to food and drink in the fridge.

12. A few days later, he was found with some ice in his possession and he was charged with possessing a prohibited drug. In fact he was charged with supplying that drug on a deemed basis, but he defended that charge and I found him not guilty. He has pleaded guilty to possessing the drug.

13. Around 14 September 2014 he broke into a property in Forest Reefs, got into the garage and stole assorted drills, motorcycle body armour, helmets and a wippa snippa. I am sentencing him for that crime. It is one of the break, enter and steal offences.

14. Another break, enter and steal offence was committed in Grenfell where he stole fishing rods and a toolbox.

15. On 18 September 2014 the people who lived in a place in Amaroo Drive, Cowra, went to bed with their two children aged six and nine months. At a quarter to 1 that morning, Jason Golonski got into the house. He got in through an unlocked door. He looked through both levels of the house. He got $60 from a purse and some car keys. He stole some clothes and then drove off. Of course he was charged with stealing the car and driving whilst disqualified but, more significantly, he was charged with the aggravated break, enter and steal. On that occasion he had broken into a house whilst the parents and two young children were at home. That is the most serious of the three offences that I am sentencing him for apart from some related and backup offences.

16. Jason Golonski was arrested at Moree on 21 September 2014 after police chased him. He confessed all of his offences to the police. He admitted that the drugs that he had in his possession were there because he had “ripped off his drug dealer”. The scenes of the crimes examined by the police disclosed a lot of objective evidence, such as DNA pointing towards Jason Golonski. He made a further interview and made what are described as full and frank admissions.

17. So the three primary offences I am sentencing him for are a break, enter and steal committed at Nashdale over the period 9-12 September 2014 (that is where he stole firearms and other property worth about $30,000); I am sentencing him for a break, enter and steal at Forest Reefs committed over 14 15 September 2014 (that is where he stole a motorbike and some associated property); and an aggravated break, enter and steal committed on 19 September 2014 at Cowra where he stole some cash and clothes.

18. As I said, Mr Golonski has a criminal record. It is quite extensive in New South Wales. He has a record for stealing cars and has been in custody twice for that. He has a record for assault. After being given a chance, he was called up and sent to gaol. He has a record which includes receiving stolen property. He received gaol penalties for that. He also has traffic offences.

19. Mr Golonski has a Victorian criminal record. It started in 1992 and goes through to 2011. Almost all, if not all, of the offences were dealt with in the Magistrates’ Court. They include the offences of stealing a car and burglary. He was given custody regularly by the Victorian magistrates.

20. Jason Golonski is now 42 and has spent a good deal of his adult life in prison.

21. Offenders will often write a letter to the judge sentencing them and Jason Golonski wrote one as well. I might add he gave an account in giving evidence which confirms much of what is in the letter, acknowledged his long record. He also said that he had been living on the street in Melbourne since he was 15 as well as in refuges. He had very little family support. His sister went through the same experience. She is living in Victoria with her children and may be able to offer him a place when he is released. But he has no family or friends or ties in New South Wales.

22. Mr Golonski makes it clear that he cannot cope on parole. He always fails, he says frankly. He says that he has breached seven of the eight paroles that he has received, so he would prefer a straight sentence. I will return to that. He wants to get an interstate transfer, eventually, so that he can return to Victoria.    

23. The crimes, Mr Golonski acknowledged, were “mostly due to me running from my dealer and police at the same time”. He said he was “not eating, not sleeping and using large amounts of that ice to keep going”. He was extremely paranoid, at the point of being delusional. In fact he gives an account, which he elaborated on in evidence, of being quite delusional and hearing voices during one of the crimes that he committed. He said that he feels “so bad that I did what I did and those people did not deserve to get their property stolen, especially the people at Amaroo Avenue in Cowra”. He acknowledges that he was not behaving like himself because of the influence of drugs. It took him some time and medication since he has been in prison for more than 12 months “to get my mind straight again”. He will, he says, not touch drugs again. He enjoys drawing and was employed in a tattoo parlour for about 18 months at one stage. He hopes to get a job doing that when he is released.

24. Mr W. Walsh of counsel, who appeared for Mr Golonski, called him to give evidence last week. He has been in custody since he was arrested. His evidence is that he has been in custody from 20 September 2014. I am going to accept that evidence and just fix the dates that I proposed.

25. Mr Golonski confirmed that his sister lives in Victoria with her seven children. His mother died of cancer and his real father lives in Germany. He had a stepfather but has a rough relationship with him. He has some contact with his stepbrothers’ family or brothers in Victoria but not in recent years.

26. Mr Golonski did a market gardening apprenticeship at one stage but had to stop it because of gaol. He confirmed that he had spent 18 months or so working in a tattoo parlour in Bathurst and had spent a good deal of his life living on the street, being homeless or in prison. He thought that he was getting institutionalised.

27. Mr Golonski’s problems were alcohol and drugs. He started with cannabis and then went on to amphetamines and then to methamphetamines. He said that he was hearing voices. That sounds to a lay person like he had a mental health condition. But there is no medical evidence which supports that, although I note that he is being treated with medication in prison. He says that the medication he is given in prison is an antipsychotic medication and he has been on it for some time. I accept that evidence. It makes a difference, he says, and it slows his mind down.

28. Mr Golonski is on protection, he admitted frankly, because the person whom he stole the ice from he gave up to the police and that person is also in custody.

29. Mr Golonski explained why he wanted a fixed term, because he keeps failing on parole and wants to live with a clean slate. I should at this stage indicate that I cannot comply with that request. I do not know whether I would be inclined to or not. I can see the force of what he says. It makes a lot of sense and he knows himself better than we do. But legally one of the crimes that he committed carries a standard non-parole period and the Court of Criminal Appeal has made it clear that I cannot decline to set a non-parole period for that offence and therefore a period on parole. This will eventually be to his benefit because the non-parole period will mean that he spends less time in gaol.

30. Mr Golonski knows that he is wanted in Victoria for similar crimes and he expects that he will be arrested when he has finished his time in prison in New South Wales. He acknowledges the seriousness of his offending and said, frankly, that no one deserves stuff to be stolen and that he feels particularly bad about the people who were asleep in their house when he broke in. He said that the crime spree was because he was using too much ice.

31. Mr Walsh asked his client about being on protection and whether it made any difference. He said that it did. It meant that he cannot get around as easily; it is harsher; there are fewer facilities and more lock-ins; there are fewer opportunities for education and work. He repeated that he would like to return to the tattooing work that he really enjoyed. He is not sure where he will live on his release. He has not yet spoken to his sister.

32. Cross examined by Ms T Hennessy, who appeared for the Director of Public Prosecutions, Mr Golonski said that he started drinking when he was about 15 or 16. He had been kicked out of home, he said. He said that his mother took him and his sister and dropped them at a hostel refuge and left them there. He started on drugs, which included cannabis and amphetamines. That gradually increased. He started taking ice around 2001 or 2002. It was, of course, an addictive and expensive habit. He confirmed that he struggles on the outside but that in prison his mind is clearer because he is not taking drugs and the medication is working. He is prepared to accept counselling to try to deal with his problems.

33. Written submissions were prepared by Mr L. Shaw of counsel, who appeared as Crown Prosecutor in Orange, and they became MFI 1. I have read and taken those into account.

34. Mr Walsh acknowledged in his submissions the connection between the criminal behaviour and the drug taking which he said was an explanation but not an excuse. He pointed out that his client had made an early plea of guilty, which Ms Hennessy acknowledged, and expressed remorse, which she also acknowledged. He pointed to his client’s tragic life and the risk of institutionalisation and argued that he is, nevertheless, not beyond redemption. He said that his client was frank and apparently gave honest evidence. I am inclined to agree with that, as was Ms Hennessy. Mr Walsh emphasised that his client is still only 42 and that his term in prison would be served in protection and reminded me of the brief period of employment which was in a job that he enjoyed.

35. Ms Hennessy acknowledged that the offences which Mr Golonski had committed were serious but unremarkable break, enter and steal offences which were low on the scale of relative seriousness. She acknowledged that his personal circumstances were very sad. She acknowledged the risk of institutionalisation. Mr Golonski’s prospects of rehabilitation cannot be called good, realistically. She suggested, and I think she is correct, that failing to give a non-parole period at all may be at odds with one of the purposes of sentencing and pointed out in later submissions that I cannot decline to set a non-parole period for the s 112(2) offence. She made submissions regarding the related and backup offences which I will come to in due shortly.

36. MFI 3 confirms that the pleas of guilty were entered at the earliest available opportunity. As I said, I will give Mr Golonski the benefit of the doubt on the one day and his sentence will commence on 20 September 2014.

37. I am going to fix an aggregate sentence. That means I will indicate what the individual sentences would have been for the three crimes, but instead of setting those individual sentences I will fix one aggregate sentence before I return to the related and backup offences.

38. There is a tariff or a range for the kinds of crimes which Mr Golonski committed. In respect of the two break, enter and steal offences, objectively speaking his crimes are in the lower end of the range of objective seriousness but his criminal record for these kinds of crimes means that within that range it would tend to be higher rather that lower within that band. For each of those two crimes I have in mind an overall sentence of five years imprisonment.

39. For the aggravated break, enter and steal, again it is within the low end of that kind of crime but within that band, because of his criminal record, is further up the scale. That is because of the emphasis which the Crimes (Sentencing Procedure) Act 1999 places on the fact that a person has a previous criminal record for similar offences. I would regard an appropriate sentence for that offence as six years imprisonment.

40. However, Mr Golonski has pleaded guilty at the earliest available opportunity on each occasion. So, instead of the six year prison sentence, I will impose a four and a half year prison sentence. Instead of the four year prison sentence, I would impose prison sentences of three and three quarter years.

41. Of course, if I accumulated those and fixed them to be served one after the other, Mr Golonski would end up serving 12 years imprisonment. That would be too severe. There needs to be some overlap in the sentences because the crimes, although they had different victims, were committed in one episode of criminal behaviour over some weeks. I would have accumulated the sentences partially with the end result being a sentence of six years imprisonment. For a sentence of six years imprisonment, Parliament envisages that normally a non-parole period would be three quarters of that, namely four and a half years in prison. Because Mr Golonski is serving some of his time in gaol, if not all of it, in protection, and because of the risk to him of being institutionalised, I will reduce that non parole period to four years imprisonment.

42. So the overall sentence will be six years imprisonment and the non-parole period will be four years imprisonment.

43. I am asked by Ms Hennessy to deal with a series of further offences committed by Mr Golonski over the same period. They are less serious offences. I have listed them all at the commencement of these remarks and they include the various theft of cars and driving whilst disqualified and other examples. One of the offences is a backup offence and that was the offence of possessing a prohibited drug.

44. Ms Hennessy also reminded me that I need to bear in mind that I am limited to the jurisdictional limit of the Local Court of two years in respect of all these offences. She took me to s 166 of the Criminal Procedure Act and, more significantly, to the definition of a backup offence and a related offence in s 165. I had raised some concern about whether some of the offences on the list were indeed related offences. A related offence is defined in s 165(1) as an offence that is a summary offence or an indictable offence that is capable of being dealt with summarily by the Local Court, but it also must arise “from substantially the same circumstances as those from which the first indictable offence has arisen”.

45. I am sentencing Mr Golonski for three indictable offences. Ms Hennessy frankly pointed out that charges 1 to 4 in the schedule of offences which appear in tab 3 of exhibit A are arguably not related offences because they may not arise from substantially the same circumstances. I agree with her. She provided MFI 2 which was a helpful summary of the various offences. I accept what she submitted in MFI 2 regarding charges 1 to 4 and I would remit those offences to the Local Court. Regarding offence 5 I agree that it is related and I would sentence Mr Golonski to 12 months imprisonment to commence on the same date as the other sentence I am imposing. For the backup offence I would sentence Mr Golonski to six months to commence on the same day. Charges 9 and 10 I accept her submission that they are related offences and I would sentence him to 12 months on each of those offences. Charges 11, 12 and 13 I accept her submission that they are not related and I would remit those to the Local Court. I agree that charge 14 is related and I would impose a conviction under s 10A of the Crimes (Sentencing Procedure Act) 1999. I agree with her that charges 15 and 19 are not related and I would remit those. Charge 18 I accept is related and I would sentence Mr Golonski to three months imprisonment to commence on the same day.

HIS HONOUR:   I will sentence you now, Mr Golonski.

46. I fix a non-parole period of four years imprisonment. That commenced when you were arrested on 20 September 2014. It will expire on 19 September 2018. The balance of your sentence is two years commencing 20 September 2018 and it will expire on 19 September 2020. So your overall sentence is six years. It started last year when you were arrested on 20 September 2014. It will finally expire on 19 September 2020. You have four years you must serve, starting last year and finishing on 19 September 2018. On 19 September 2018 you are eligible for parole. The Parole Authority decides that. And for the reasons that I have given, the legal reasons, I cannot not set a non-parole period.

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Decision last updated: 03 August 2016