Citation: R v Golonski [2015] NSWDC 402
Court: District Court of New South Wales
Date: 23 December 2015
Judge: Cogswell SC DCJ
Background
The offender, a 42-year-old man with an extensive criminal history in both New South Wales and Victoria, appeared for sentencing in respect of offences committed during a sustained crime spree throughout September 2014. He had been homeless since the age of 15, had minimal family support, and had spent the majority of his adult life in custody. At the time of the offences, he was severely affected by methamphetamine ("ice") and described himself as paranoid and at times delusional.
Over approximately two to three weeks, the offender stole motor vehicles, firearms, clothing, food, cash, and other property across several rural properties near Orange, Forest Reefs, Cowra, and Grenfell. He was arrested at Moree on 21 September 2014 following a police chase, after which he made full and frank admissions about all of his offending.
The three primary indictable offences for sentencing were: a break, enter and steal at Nashdale (where nine firearms and property worth approximately $30,000 were taken); a break, enter and steal at Forest Reefs (where a motorbike and associated gear were stolen); and an aggravated break, enter and steal at Cowra, where the offender entered an occupied family home in the early hours of the morning while a couple and their two young children (aged six and nine months) were asleep inside.
Legal Issues
- The appropriate sentence for two counts of break, enter and steal under s 112(1) of the Crimes Act 1900 (maximum 14 years each) and one count of aggravated break, enter and steal (maximum 20 years, with a standard non-parole period of five years)
- Whether the objective seriousness of the offences warranted departure upward or downward from the standard non-parole period
- How the offender's subjective circumstances (including addiction, homelessness, institutionalisation, remorse, and early guilty plea) interacted with his extensive criminal history in the sentencing calculus
- Whether an aggregate sentence was appropriate, and what non-parole period should be fixed given the offender's stated inability to comply with parole conditions
- Which of the additional summary and indictable offences on the schedule qualified as "related offences" under s 165(1) of the Criminal Procedure Act 1986, and which should be remitted to the Local Court
Decision
Cogswell SC DCJ found that the aggravated break, enter and steal at Cowra was the most serious of the three primary offences, given that it was committed in an occupied dwelling with young children present. However, his Honour assessed the offences as falling at the lower end of the range of objective seriousness, noting that the offender did not confront or threaten the occupants and that the Cowra entry was made through an unlocked door.
On the subjective side, the court gave weight to the offender's full and frank confession to police, his early plea of guilty, and his expressed remorse, including a handwritten letter and oral evidence in which he acknowledged the impact of his offending on victims. The court also acknowledged the significant role of ice addiction, homelessness from adolescence, lack of family support, and minimal employment history. These matters were weighed against a serious criminal record, poor compliance with parole (seven of eight paroles breached), and what the court identified as a real risk of institutionalisation given the offender had spent most of his adult life incarcerated.
The offender's candid acknowledgement that he could not cope on parole was noted. Despite this, the court was legally required to set a non-parole period and could not simply impose a fixed-term sentence in the absence of special circumstances. His Honour ultimately found no special circumstances that would justify departing from the standard ratio between the non-parole period and the balance of the sentence.
On the related offences question, the court carefully distinguished which summary and indictable charges arose from substantially the same circumstances as the primary offences. Several charges were accepted as related offences and dealt with by way of concurrent sentences or a s 10A conviction; others were remitted to the Local Court on the basis that they did not meet the statutory definition under s 165(1) of the Criminal Procedure Act 1986.
Orders Made
- Aggregate sentence of six years imprisonment imposed, commencing 20 September 2014 and expiring 19 September 2020
- Non-parole period of four years, expiring 19 September 2018 (at which point eligibility for parole arises, subject to the Parole Authority's determination)
- Balance of sentence of two years, commencing 20 September 2018
- Related offences sentenced to concurrent terms of imprisonment (ranging from three to twelve months), commencing on the same date as the head sentence
- One related offence dealt with by way of conviction under s 10A of the Crimes (Sentencing Procedure) Act 1999 (no additional penalty)
- Charges 1 to 4, 11, 12, 13, 15, and 19 on the schedule remitted to the Local Court as not qualifying as related offences
Key Takeaways
- The District Court assessed both ordinary break, enter and steal offences and the aggravated variant (involving an occupied dwelling) as falling at the lower end of objective seriousness, reflecting the absence of direct confrontation with victims rather than any reduction based on subjective factors.
- A full and frank confession to police, combined with an early guilty plea and genuine remorse, carried meaningful mitigating weight even where the offender had an extensive criminal record.
- Where an offender has spent most of their adult life in custody, sentencing courts are required to grapple with the risk of institutionalisation and its implications for rehabilitation prospects, even where those prospects are assessed as poor.
- Under s 165(1) of the Criminal Procedure Act 1986, a summary or indictable offence qualifies as a "related offence" only if it arises from substantially the same circumstances as the primary indictable offence; charges failing that test must be remitted to the Local Court rather than dealt with on the schedule.
- An offender's own acknowledgement of an inability to comply with parole does not, of itself, constitute "special circumstances" sufficient to justify a departure from the standard non-parole period ratio, because the court retains a legal obligation to fix a non-parole period in the ordinary case.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(1) (break, enter and steal; aggravated break, enter and steal)
- Criminal Procedure Act 1986 (NSW), s 165(1) (related offences)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A (conviction without additional penalty)
Cases cited: No cases were cited in the judgment.