Director of Public Prosecutions v Abela
[2013] VCC 762
•6 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-13-00237
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON DANIEL ABELA |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 April 2013 (Plea) and 28 May 2013 (Further Plea) | |
DATE OF SENTENCE: | 6 June 2013 | |
CASE MAY BE CITED AS: | DPP v Abela | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 762 First revision | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Burglary, Theft (Multiple Charges), Obtain Property by Deception, Handling Stolen Goods, Make Counterfeit Money, Dealing with the Proceeds of crime – Continuing criminal enterprise – Drug Use – Major Depressive Disorder
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Pillai | Solicitor for Office Public Prosecutions |
| For the Accused | Mr Milsom | James Dowsley & Associates |
HER HONOUR:
1 Jason Daniel Abela, you have pleaded guilty to 22 charges of theft, one charge of making counterfeit money, six charges of burglary, one charge of obtaining property by deception, two charges of handling stolen goods and a summary charge of dealing with proceeds of crime.
2 The maximum penalties for theft, burglary and obtain property by deception is ten years' imprisonment. The maximum penalty for make counterfeit money is 14 years imprisonment, whilst the maximum penalty for handling stolen goods is 15 years' imprisonment.
3 However, in relation to charges 14 to 17 inclusive as well as charges 19 to 21 and charge 25, you are to be sentenced as a continuing criminal enterprise offender and your status as such will be entered in the records of this Court. This means that in relation to the charges which I have just mentioned, you will be sentenced on the basis that the maximum penalty is twice that which normally applies, that is, the maximum sentence applicable for those charges is 20 years imprisonment. Of course, the maximum penalty is only one of the matters to which I must have regard in sentencing you. However, the maximum penalties reflect the seriousness with which Parliament regards these types of offences, especially continuing criminal enterprise offences. In effect, in relation to those particular charges where you stole items, which, on their own, were worth more than $50,000, and having done so on more than three occasions, you are regarded as a significant threat to the community. You are seen as having run a continuing criminal enterprise and the maximum penalty doubles in a bid to protect the community from such serious offending.
4 The summary has a maximum penalty of 2 years imprisonment.
5 You committed this spate of offences (33) over a period of nearly 10 months, between 22 November 2011 and 11 September 2012.
6 At that time, you and your younger brother, James Abela, had moved into your stepfather’s factory in Dandenong South where numerous stolen items were ultimately found by police. As at the time you were charged in September 2012, you were living in Frankston with your older brother, Matthew Abela, and your younger brother, James.
The offending which gives rise to Charges 1 and 28 – Theft of Polaris quad bike and obtaining property by deception – sale of the bike, are as follows:
7 On an occasion between 22 November 2011 and the following day, your brother, James, and an associate “Chris” attended a property in Macedon where you stole a Polaris 500 cc quad bike. You took the bike after you gave an associate “Chris” a lift to the property for the purposes of him stealing some saddles. Whilst “Chris” was stealing three saddles, you saw the quad bike and pushed it onto the trailer which you happened to have with you. At the time you were driving your mother’s black Mazda CX7 with a trailer attached to it.
8 Some nine months later, on 2 August 2012, you sold the bike for $3,200 cash to the father of an employee at a reduced price of $2,400 so as to make allowance for $800 as part payment of wages owed to your employee.
9 The quad bike was valued at approximately $12,000 and was ultimately recovered and returned to the owner. A David Cunningham who bought the bike from you said that he did not think the bike was stolen.
10 When interviewed by police as to your reason for stealing this, you said you had no reason.
Re Charge 2 – Make counterfeit money
11 Between 1 January 2012 and 11 September 2012, you printed counterfeit money at your stepfather’s factory. On 11 September 2012, police executed a search warrant at the factory and found multiple copies of $50 notes with the same identification number. They also found a star stencil covered in white spray paint. Subsequent enquiries revealed that fifteen $50 notes with the same identification number had been produced at various locations since February 2012. When interviewed by police, you admitted that you printed ten to twenty $50 notes but said that you were never intending to counterfeit money. You said you were photocopying money as you had a new printer and wanted to check the different shade functions. You said that the star stencil was used to see whether you could copy stars on the $50 notes. You also said that you definitely did not do anything else with the printed money but acknowledged that if you could have, then you would have used them.
12 You were unable to explain how fifteen of the notes had apparently been distributed, then said that you may have given these to a drug dealer. You then said that you gave two or three of these to a person called “Johnson”. You said that you had no reason for making the counterfeit money but also said that you needed money and were on drugs. In this respect, your answers in the record of interview appear to shift in running and are somewhat disingenuous in my view.
Re Charges 3 and 4 – burglary and theft – Van Cruiser Caravans
13 On 23 January 2012, you entered the premises of Van Cruiser Caravans in Carrum Downs and stole four camping fridges, four camping barbecues and one cash register, being property belonging to Van Cruiser Caravans. The locks on the front doors of the factory were broken and appeared to have been jemmied open.
14 Your Ford utility was identified on CCTV footage leaving the premises on two occasions with items in the back. The total value of items stolen was $5,000.
Re Charges 5 and 6 – burglary and theft – Diamond Blinds
15 On that same day, you entered a shipping container which was stored at the back of Diamond Blinds, a factory in Carrum Downs. You stole 300 aluminium Venetian blinds with an estimated value of $30,000. These were recovered during execution of a search warrant. When interviewed by police, you made admissions to theft of these and said that you saw the container when driving around during the day. You returned at night and discovered the blinds which you took in your ute to your stepfather’s factory. You said that they sat there for ages and you did not get anywhere with them. You gave them to a friend to get rid of them and you said that he “got done” with them.
16 When interviewed by police, you admitted to stealing a trailer from Portsea. You said you needed a new trailer as your own had been stolen. An associate, Ben Carter, who used to live in Portsea, knew about the trailer and between 28 and 29 February 2012, at about 11.00 pm, you and Carter attended an address in Portsea where Carter showed you the “flat bed tandem trailer” which was on the roadway. Carter backed his vehicle to the trailer and you attached it. Then you both drove away to a friend’s factory in Seaford. You kept this and used it on a daily basis for your own personal use.
17 Subsequently, you sold the trailer along with a stolen mower to a Michael Crawford. You received $3,000 for the trailer and mower. The trailer was valued at about $2,000 and has not been recovered.
18 Subsequently, police found the registration plate from the stolen trailer in a vehicle which you had used to decamp from an address in Dandenong South on 5 June 2012. This gives rise to Charge 7.
Re Charges 8 and 9 – burglary and theft – Henley Properties
19 Between 20 April 2012 and 23 April 2012, you attended an address in Cranbourne West and stole a printer, a number of building tools, as well as various bathroom fittings and furniture as well as door furniture, all of which belonged to Henley Properties. You told police that you and co-offender, Ben Carter, attended the premises which he had told you about. He jemmied the lock open and loaded the van. You kept some of the items including the vanity unit for yourself. Some of these items were recovered during execution of a search warrant.
Re Charge 10 – theft of bobcat
20 Between 3 May 2012 and the following day, you attended a construction site in Dandenong South with three co-offenders, being James Stuart, Ben Carter and a person you knew as “Dean”. With their help, you stole a 2010 model bobcat. In a record of interview with police you said that Carter and Dean kept watch and were in another vehicle while James Stuart and you went in. You reversed a ute and trailer in, then loaded up. You told police that Stuart had cut the padlock and chain with bolt cutters then hotwired the bobcat. You loaded this machine on a tandem trailer which was taken from where the bobcat was. You said that you received $1,500 as your share, although later in the interview you said that you received about $1,000 and that the bobcat was sold for $10,000. You said that you stole the bobcat as you just needed the money.
21 The bobcat was valued at approximately $42,000 and has not been recovered by police.
Re Charges 11, 12 and 13 – thefts from R.E.D.S. Concreting
22 Before being interviewed, you were shown footage of the theft of the items being stolen, being a truck, aluminium ramps and a bobcat. You told police that co-offender, James Stuart, said he needed a truck and bobcat and you told him where there were a lot of trucks.
23 Between 13 May and 15 May 2012, you drove your Ford ute with Stuart to a holding yard for R.E.D.S. Concreting.
24 You entered through the factory next door, as you knew there was no fence allowing you to walk straight through into the holding yard. Another co-offender, Gissing, also attended, keeping watch from his own car.
25 You smashed a window of a Hino tray truck and tried to hotwire this but failed. Subsequently you returned with another ignition and stole the truck. Your co-offender, Stuart, then broke into a second truck by smashing the back window. While he was doing this, you took two aluminium ramps from inside a trailer. You drove away in your ute while Stuart drove away in the truck that he had just broken into. Later, police found the chain securing the double cyclone mesh gates had been cut. Although you stopped around the corner while Stuart emptied rubbish from the truck he had just stolen, you quickly drove away after being spotted by a security guard from a church nearby. You picked up the aluminium ramps off the road and loaded these before leaving. These were used for stealing a bobcat in a subsequent theft.
26 Shortly after this, you met with Stuart and Gissing at your house. They took the ramps from the back of your ute and asked you if you were coming along to steal a bobcat. You said “No”; you knew that they were going to steal a bobcat from Echuca but refused to be involved because you said they were idiots during the thefts in which they had all just been involved. When the interviewing police officer asked you if you regarded their behaviour as “unprofessional”, you agreed with this.
27 The aluminium ramps which you stole are valued at $1,100 and were never recovered.
28 The owner of the ramps has had to incur the cost of replacing them.
29 The Mitsubishi truck which you stole is valued at $15,000 and had sustained about $2,500 damage including a smashed back window and broken steering lock. The truck was found by a Christopher McGrath who was searching for his stolen vehicles which are the subject of Charges 17 to 19 on the indictment. Police were notified and this truck was recovered. Dog chains from the truck were found at your factory on 11 September 2012 and returned to the owner. You admitted that the chains and ratchets came from the truck stolen on this occasion.
30 The first truck which you had tried to steal and returned to later with another ignition is the subject of Charges 20 and 21.
31 When interviewed by police in respect of Charges 11, 12 and 13, you said “There was money to be made, and I'm trying to support a family and a drug habit.” You said that your reason for stealing the ramps was to help a friend “in they’re needing money”.
Re Charge 13 – theft of bobcat
32 You have pleaded guilty to this charge but the Crown concedes that you were not present when the theft was committed. They said that you were guilty on the basis of aiding and abetting co-offenders in the theft of the bobcat. This was not the theft of a bobcat in Echuca in which you were unwilling to become involved. By your plea, you admitted that you were party to theft of a bobcat which was taken by Stuart and Gissing on 15 May 2012 from a construction site in Carrum Downs. They loaded the bobcat onto a stolen truck and the bobcat was never found. The owner of this item was paid $25,820 by his insurance company.
Re Charges 14, 15 and 16 – Re thefts of truck and excavator
33 You and Gissing had an associate, Alex Dimopoulos, who expressed interest in buying a stolen truck and bobcat.
34 Between 28 May 2012 and 29 May 2012, you and Gissing drove around in your ute looking for machinery to steal. You found a Mitsubishi tray truck with a Kubota excavator on the back at the Frankston City motor cycle track in Seaford, where the owner of these items was contracted to work at the time.
35 You and Gissing jumped the fence in order to enter the motor cycle club and used generic keys to gain access to the truck and excavator. You started both vehicles, which had been locked and no keys had been left in or on them. You loaded the excavator onto the back of the truck which Gissing was driving. You and Gissing cut the padlock and chain on the front gates and Gissing drove the truck with the excavator whilst you drove away in your ute. You both drove about half a kilometre down the road to a Peninsular Link holding yard where you found a Caterpillar bran bobcat stored behind temporary fencing. You lifted the fencing and Gissing reversed the truck up and put the ramps down while you loaded this bobcat onto the back the truck.
36 This bobcat was fitted with a GPS tracking device which then gave information of the route that you took. The GPS tracking system correlated with the location of your mobile phone which led investigators to Dimopoulos’s address in East Bentleigh. This is where you took the bobcat and stored it in the garage. You, Gissing and Dimopoulos then became concerned that the bobcat may have a tracker and so you and Gissing drove the truck, excavator and bobcat around the corner. You found the GPS tracker underneath the seat and removed it. You told police that you thought you received $4000 each for your efforts.
37 The owner of the excavator and truck described them as being in excellent condition. The owner had paid $74,000 for the truck and $94,000 for the excavator. These were recovered by the police and returned to the owner. However, the interior of the excavator and its electronics were so badly damaged that these had to be replaced at a cost of $25,000. Damage to the truck was estimated at $12,000.
38 The owner of the items said that the theft of the equipment had created substantial financial problems for his business, as repairs to the equipment took two months. As a result, his business lost approximately $60,000 to $70,000 worth of work.
39 The Caterpillar brand bobcat was valued at $84,049 and belonged to a rental store. It had not been recovered by police and the owner received a payout from the insurance company of $41,621.22; that is half its valuation.
Re Charges 17, 18 and 19 – thefts of truck, trailer, bobcat and excavator – CJB Excavations
40 You had a company which was involved in excavations and concreting. You were hired to concrete and excavate a property in Dandenong South. You mentioned to Gissing that you needed a tip truck for the job. He told you where one could be found and between 4 and 5 June 2012, he drove you to a holding yard for “Rockscape” landscape supplies in Wantirna. Here you found a Mitsubishi tray truck, a bobcat, and a trailer hooked to the truck which held an excavator.
41 You admitted to police in your interview that you stole the truck, bobcat and excavator and made a detailed statement to police on 26 September 2012 in respect of these thefts. You said to police that you thought you used a screwdriver to open the front driver’s door and then hot-wired the truck by taking the back of the ignition barrel off and putting in a screwdriver and turning it. Gissing cut the padlock off the gate using bolt cutters and you drove to your work site with Gissing. On the way to your work site, you disconnected the trailer with the excavator as you did not need this. You left these items near Fosters Road. You unloaded the bobcat at your work site then drove the truck to where you had left the excavator and trailer.
42 Later that day, you and your younger brother, James, were confronted at your work site by the owner of the bobcat. You told police that there was an altercation but that you drove away in the ute.
43 The owner of the truck, trailer, bobcat and excavator was a self-employed plant operator, Christopher Bevan. He was notified of the theft at 4.30 am. The truck and excavator had GPS trackers attached to them, which enabled the owner and police to inspect machinery at the location to which they tracked it. The truck, trailer and excavator were found but the bobcat was missing.
44 Mr Bevan then attended a café and whilst there he happened to see his bobcat being used on your work site. He called “000” then approached you and another male and recorded the incident on his mobile phone. The footage depicted you and your brother, the ute and its registration. A friend of Mr Bevan’s drove their car from the café to the exit of the site, blocking you and another male. However, you managed to leave the site. Distinctive signage for CJB Excavations which had been on the truck had been discarded on the site and was later identified by the owner. The owners of the premises at your work site subsequently advised your name and phone number. You had quoted $39,403 for the job at this work site and had already been paid a deposit of $7,000. The truck and trailer were worth $90,000 and $25,000 respectively. The bobcat was worth $45,000 and the excavator was valued at $80,000.
45 When interviewed by police about this offending, you said that you wanted to try to make some extra money for the business and pay “the boys." You said that you tried to do it “the cheap way” and wanted to get a tip truck to remove the old asphalt. You said that you and Gissing ended up finding a truck trailer and “that’s where we went a bit over the top.” You said that you were using the machines and did not intend to sell them and that you were just trying to “get one step ahead”, that you were trying to get ahead in life.
Re Charges 20 and 21 – theft of tray truck and excavator – R.E.D.S. Concreting
46 Between 15 and 16 June 2012, you and Gissing went to a holding yard for R.E.D.S. Concreting in Seaford. You again drove your mother’s car. You cut the lock on the fence and found a white Hino tray truck which was loaded with a Komatsu 8 tonne excavator. You started the truck and drove this with the excavator out of the property to Jells Park. You drove the items here because Dimopoulos did not want the items at his address.
47 The following morning, you drove the truck and excavator to Dimopoulos’s premises. You unloaded the excavator and removed stickers identifying the truck as belonging to R.E.D.S. Concreting, as well as stickers identifying the bobcat.
48 On 19 June 2012, a neighbour of Dimopoulos video recorded the movements of this machinery and two males outside the property, on her iPhone. She provided this information to the police.
49 Shortly afterwards, police attended the vicinity and observed the truck and two males in high visibility orange vests. The males ran out of the driveway towards a car which was identified as your mother’s car. Police tried to follow the car but lost sight of it.
50 The stolen truck and excavator are valued at $195,000 and were located and returned to the owners.
51 Police showed you photos taken from footage of these thefts and you said that you and Gissing stole the truck for Dimopoulos who had sold an excavator. You said that you attended the yard because you had been there in the past and knew that machinery was there. You said that Dimopoulos organised the sale of the machinery and you were not involved in this. You expected to received $8,000 to $10,000 from the theft. You said you were desperate for cash. Dimopoulos was contacted by police and denied knowledge of the truck.
Re Charges 22 and 23 – burglary and theft – Mambo Restaurant
52 Between 23 and 24 June 2012, you stole two safes and money from Mambo Steak and Seafood Restaurant in Frankston. The safes had been “dyna-bolted” to the concrete floor within the office. The small black key lock safe had also been stolen. The key for the office door, which was hidden in the restaurant in a tea box in the bar, was also missing. The larger safe contained a total of $26,000 to $30,000 cash being one day’s takings, a Bendigo Bank cheque book and business tax file declarations. The smaller safe contained $500 to $2,000 cash in plastic money bags and cardboard wrapped coins.
53 When interviewed by police on 11 September 2012, you admitted that you got a “tip off” that a safe was there and that there was a good amount of cash there. You said that you expected to get close to 30 grand. You said that you took a trolley and a jemmy bar and cut the safe open with an angle grinder. You said that you and “Aaron” received $5,000 to $6,000 which was distributed between you. This does not seem to tally with the amount of money said to be stolen but I have put that to one side.
54 You said the money was probably spent on drugs and that you smoked drugs in a glass pipe three or four times a day. You said you had half a gram a day which cost you $250 at times. Your counsel said that you sometimes smoke one gram of ice a day, which costs you $500 a time. You said to the police that you had the drug GBH to lift your mood and that on occasion, you had swapped tools for drugs. I will refer to this aspect of your plea later on in the sentencing remarks.
Charges 24 and 25 – theft of mesh, tilt tray truck
55 On 6 July 2012, you and Benjamin Carter went to Bay City Rentals in Cheltenham. Carter drove his Mercedes van. You gained entry to the yard by cutting the lock on the gate. You used a screwdriver to pop open the lock of an Isuzu tray truck. You then started the truck by pulling the back off the ignition and turning it. You then drove the truck away.
56 You had seen 50 sheets of mesh at a building site in Carrum Downs earlier that day when driving past. You used a winch to load the mesh onto the truck, then drove to a work site in Dandenong South where your company was contracted to do earthworks. You unloaded the mesh then drove around the corner where you parked the truck.
57 The stolen truck was valued at $70,000. It was recovered by police and returned to the owner. The sign writing on the truck had been painted out in white and chains on the tow winch had been broken. Repairs to the vehicle cost $3,000.
58 The stolen mesh was valued at $6,000 and the owner has had to incur the cost of replacing this.
59 On 11 September 2012, police found a black HRD case containing multi tools which were taken from the stolen truck by you. These were seized and returned to the owner.
60 When interviewed by police, you said that you spotted the truck and returned later that night to get it. You said you needed mesh and that you wanted to try and do the job as cheap as you could and to try and make as much as you could so that you did not have to “do the heavy shit anymore”.
Re Charges 26 and 27 – burglary and theft from Graham Gold & Coins
61 On or about 29 July 2012, you broke into “Graham Gold & Coins Shop” in Frankston and stole collectable coins with an estimated value of $120,000 to $140,000. The front roller door had been forced or jemmied open and the heavy glass/wooden sliding door had also been jemmied and damaged. The number of items including collectable Australian and foreign coins, notes and war medals was in the hundreds. The sleeves which had handwritten details identifying each of these were also stolen.
62 During your first interview with police on 11 September 2012, you said that you were driving through Frankston with a friend “Mick”, and had heard of this job a while before. You and he decided to do the job and said that you needed the money and were really struggling at the time. You said to police that it was “the biggest waste of time”, “because you had made nothing out of it”. You said you divided the spoils between you and you had looked up the items in books and found that they were worth nothing. You said that you were offered nothing, so you basically gave them away to a friend. Again, you said that you needed the money – you said that you did not have a cent in your pocket and were trying to get onto Centrelink, that your business went down and that you were struggling for a dollar.
Re Charge 28 – (dealt with in connection with Charge 1)
Re Charges 29 and 30 – Burglary and theft of lawn mower-Southern Obedience dog club.
63 Between 15 and 17 August 2012, you and co-offender Gissing drove to an address where you had previously seen a lawnmower. You were towing a trailer which was owned by you.
64 You broke into a shipping container and reversed a “John Deere” lawnmower with a bucket attachment onto the trailer. The mower had a key in the ignition. You then took the mower to a container in Dandenong which you knew had been there for a number of years. You stored the mower in the container and secured it using your own padlock and key. You later sold the mower for $2,400 cash – the sale taking place at the container. You and Gissing went halves in the proceeds. The mower was in fact valued at $24,000 and it was recovered by police and returned to the owner. You told police that your reason for stealing the mower was that you needed the money.
Re Charge 31 – handling stolen goods – truck rims and tyres
65 On 8 September 2012 at about 1.30 pm, you received truck tyres and truck rims which you knew to be stolen. These were dropped off to you at your stepfather’s factory to see if you could sell them. You estimated that there were about 30 tyres and four rims, but told police you did not make any money. You expected to receive a commission of 50 per cent if you had sold them. These items were valued at about $3,000. They were found and seized by police on 11 September 2012 and returned to the owner.
Re Charge 32 – handling stolen goods – various items
66 On 11 September 2012 when police executed a search warrant at your stepfather’s factory, they found and seized 354 items which were either identified as being stolen or suspected as being proceeds of crime.
67 You admitted to police that a number of tools in the factory had been stolen including the following:
68 Generators, power tools, drills, augers, tripods, wire cutters, a steel cutter, circular saws, pumps, grinders, levels, zip ties, jack hammer, CCTV recorder, and a pipe bender. Numerous other tools were located which are set out in paragraph 115 of the Prosecution Opening, which I refer to and adopt for the purposes of these sentencing remarks. You also told police you had a number of keys from various building sites. You said that some of the items which police found were stolen from sites where you had worked or which you had passed by. These are detailed at paragraph 117 of the prosecution opening which I refer to and adopt in my sentencing remarks.
69 A number of items were engraved or marked with company names or licence identifications showing that they were stolen. You were unable to estimate the number of items in the factory which were stolen. You explained later that someone had come to the building sites and sold tools which you knew were stolen. You said “When you’re getting a good deal, you don’t care, you know what I mean?” When asked if you wanted to say anything in respect of the handling charges, you said, “No not really, stupidity.”
Re Summary Charge – dealing with property suspected of being proceeds of crime
70 You have also admitted to the charge of dealing with property suspected of being proceeds of crime. Hundreds of items are detailed in the 4 and a half page schedule attached to the charge, the subject of this summary matter. There are nearly 200 lines of items set out in the four page schedule and in a number of those lines multiple items are referred to. These are in the nature of tools, building materials, tyres, computers and other electrical goods.
71 You were arrested at your stepfather’s factory on 11 September 2012. As previously mentioned, a search warrant was executed at the factory at this time. You were interviewed by police on a number of occasions and the Crown concedes that you made full admissions to a number of offences and were cooperative with police.
72 Mr Abela, your offending was prolific and unconscionable. Although some of the offences you committed were somewhat opportunistic, most of your offending involved a level of planning, which resulted in you stealing items of significant value. Although I cannot find that you were the leader in relation to these offences, nor could it be said that you were simply a follower. You played an active and important role with co-offenders in committing the offences. Moreover, you stole items on a number of occasions which resulted in tremendous hardship to the owners. In your disarmingly frank records of interview, you seemed consumed by your own needs and the viability of your business, rather than having any conscience about other people’s livelihoods and their need to “get ahead”.
73 It seems to me that the nature and frequency of your offending over that ten month period bear the hallmarks of you having become a professional thief. Moreover, the abundance of items found by police at your stepfather’s factory in September 2012, indicate that you had no apparent conscience in possessing items which you knew or believed had been stolen.
74 In addition to matters raised in the Prosecution Opening itself concerning the impact to victims that your offending has caused, I also take into account the four Victim Impact Statements which were tendered at the plea hearing: Mr Gardner, who is the victim in relation to Charges 14 and 15, said that he missed out on about three months of work at $1,000 a day. He is only twenty-three years old and says he was under a lot of stress because of the impact of your offending on him.
75 Mr Gnocato, who is the victim in respect of Charges 3 and 4, said that he has suffered frustration and anger because of your offending against him. He has also felt insecure in respect of his business and security related to the building. He has suffered financial loss because of the products stolen and had to pay an excess in respect of his insurance claim, which concerned repair damage and goods stolen. He and his staff lost time sifting through security footage and assisting with the police investigation. He has also incurred the expense of increased security to his building and repairing the damaged door.
76 Mr Billson, who is the victim in relation to Charges 5 and 6, said that he lost many hours of work time and had to outlay $30,000 to replace the blinds which you stole. He had to take out a bank loan in order to do this. He has also had to pay two members of staff to work overtime in order to transfer contents of the shipping container to secure premises. Your offending has impacted on his health extensively. He has endured sleepless nights because of worrying about the cost of replacing the items which you stole, as he had no insurance for these.
77 Graham Hall is the victim in relation to Charges 26 and 27. Because of your actions, he had been forced to delay his plans to marry which then caused the break-up of his longstanding relationship. Your offending has placed stress on his business endeavours and he has had to borrow money to keep the business going. He has become overly vigilant, and in the first few months after your offending he was angry and frustrated, he said. He has had to undergo counselling for a number of months and take extra precautions to secure his premises. He has had to work extra hours in a bid to overcome the setbacks caused by your offending. He has suffered health problems and stress which he attributes to the burglary and thefts of his property. He says that he has received some of his possessions back and is comforted by the fact that you have been apprehended. He itemised a number of the items which were lost to him. I was told in the course of the plea that about five per cent of the items stolen have been returned to him. Mr Hall remarks that he has been able to place your offending in some perspective, in that no one was physically harmed and the police have resolved the crime which are good things. However, your criminal actions have had a dramatic adverse effect on his life.
78 As you can see, Mr Abela, the offences which you have committed have had a real and distressing consequence for those that you have affected.
79 Your offending is most serious and must be denounced and justly punished in all the circumstances. Further, I must impose substantial weight on general deterrence in a bid to deter others who attempt to conduct themselves as you have, so that they would know that they will be met with strong sanction should they choose to do so. I must also place a good deal of weight on the need to protect the community.
80 You have been before the courts on one previous occasion, being 7 August 2012. This appearance was prior to you going on to commit further offences of a like nature. Although you were given the benefit of a wholly suspended sentence on 7 August 2012, as well as a community corrections order, you continued to commit offences. I shall return to these prior matters in a moment. In respect of Charges 29, 30 and 31, they are aggravated by the fact that, notwithstanding being placed on notice by the courts, you chose to continue to offend after being sentenced in the Magistrates Court on 7 August 2012. I was told that your prior matters were committed in the same or similar timeframe to the offences for which I now sentence you. I cannot speculate on the period over which the items which were found at the factory, and which are the subject of the handling and dealing with proceeds’ charges, took to accumulate. I must sentence you on the basis of the charge dates contained on the indictment and in relation to the summary matter, even if it is most probable that you have dealt in stolen goods for a longer period than is reflected on the indictment. On the other hand, I am prepared to sentence you on the basis that Charges 32 and the summary charge 33 are not aggravated by your prior court appearance. This is because you have been charged in respect of the day that the handled items were found or proceeds of crime were found rather than when they were first accumulated.
81 You are 28 years old and live with your girlfriend and her two children. You and she are due to have a child in September of this year. The other two children, whom you have apparently taken on as your own, are 10 and 14 years old. One of the children is at primary school and the other is at high school. Their father is not a presence in their lives. Your girlfriend’s relationship with the children’s father was marred by significant domestic violence. This meant that the children’s father has been incarcerated, which, as you are aware, will also be your fate. It can only be hoped that in the future your girlfriend’s children will have the benefit of a better father figure in their lives. I was told that your girlfriend, Natalie, suffers from depressive symptoms which will make things more difficult for her upon your incarceration. However, Mr Milsom, who appeared for you, did not argue that she and the children would suffer exceptional hardship because of your imprisonment.
82 However, in sentencing you, I allow for the hardship that you will endure as a result of being separated from your family unit, and that you will not be present for the birth of your child with Natalie. I was told that your relationship with Natalie commenced about two years ago and therefore endured throughout the course of your offending. You have been a supportive partner in her life, I was told, although it was conceded by your counsel that the level of support was lacking when you were committing these offences.
83 You have a significant work history which is set out in the material from psychologist, Alison Mynard. Your current occupation, I was told, is a horse breaker and you have lived at the property where you perform this work with your family. You have enrolled in a program which will allow you to work for a horse trainer in the future. Unfortunately, this course and your aspirations in this regard will have to be placed on hold whilst your serve a term of imprisonment.
84 I was told by your barrister that you committed the offences because your lifestyle was too expensive to support. That lifestyle apparently involved a good deal of drug use but I will refer to this aspect a little later on.
85 In sentencing you I take into account the value of the items stolen but also that a good deal of property was recovered. As I understand the position, you stole $1,067,349 worth of items although not all items were valued; and you handled or dealt with proceeds of crime in excess of $100,000 in total. All items handled or being proceeds of crime were recovered. It appears to be agreed that, of the items stolen which were valued, you caused loss to the extent of $226,027. This figure accounts for items with valuations which were either never found or which were damaged or which resulted in a quantified loss to the owner. However, I note that at the plea hearing it was submitted that only about 5 percent of the coin collection was recovered. While the entire collection was valued at $140,000 I was not told the value of the collection not recovered. Also, a bobcat, which is the subject of Charge 13 was not valued and not recovered, which resulted in an insurance payout to the owner. I cannot speculate on the degree to which the loss you have caused exceeds the figure set out in the table which was tendered on your behalf by agreement of the parties, but I do note that this is in excess of the stated figure, as I say, the extent to which it is in excess of the stated figure I will not speculate.
86 I take into account your background which was referred to at the plea hearing and which was set out in the first report of Ms Mynard, psychologist, dated 5 May 2011. The report notes that she assessed you for two hours on 2 May 2011 but in her report dated 18 April 2013, she said that you were referred to her under a mental health plan in August 2011 after the initial assessment. I was told by your counsel that you commenced seeing Ms Mynard as a means of addressing your problems with depression and anxiety, rather than in response to any pending charges. However, when I queried the purpose for the initial report in May 2011, I was told that this was for the purposes of your court appearance at the Magistrates Court in August 2012. In any event, on any view of matters you have consulted with Ms Mynard on a number of occasions on a somewhat sporadic basis.
87 You have fond memories of your father who, unfortunately, left you and your family when you were only five years old. You grew up with two brothers and a half brother. Your mother re-partnered a few years after your father left and, from when you were six or seven, your stepfather lived in the family household. You have had a problematic relationship with your mother, and although your natural father returned to Australia from America when you were a teenager, you apparently do not enjoy a close relationship with him. You have not enjoyed the support and approval of your stepfather or mother in relation to your business aspirations. You told Ms Mynard that you have never taken your stepfather’s money even though he has lots of it. In this regard, I note that you did have the use of his factory, although I was not told whether you paid for this. You also had the use of your mother's car on occasion, I observe.
88 You had been in a relationship for six years with a woman whom you have known from childhood. You were engaged to be married, however, in mid-2010 the relationship ended. I understand that a major reason for this was your abuse of drugs.
89 Your education was unremarkable and you were able to pass all subjects. When you turned 16, you left school as you wanted to start a business. You obtained an apprenticeship which you completed when you were 20 years old. You worked at various service stations or mechanic shops for several years during your apprenticeship but left as you felt you were being exploited. After this, you had 13 jobs in a period of two years, often arguing with bosses about various problems.
90 In the past, you have had problems with managing your anger, which was often fuelled by alcohol consumption. However, after a particular incident, you made a decision to avoid fights and try to control your aggression.
91 You told Ms Mynard that since your fiancée left you in mid 2010, you had been very teary and had distanced yourself from others, feeling very low in mood.
92 You said that this relationship ended because of your drug use and also because of your lack of time for her due to you establishing your business.
93 You told Ms Mynard that you used amphetamines, mostly speed and ice, and had also used ecstasy from your late teenage years. You admitted to using ice in the context of helping you to have energy to establish your business “two or three years ago." You acknowledged you became addicted to ice, using this every day, but you said that when your fiancée left you, you ceased using amphetamines and methamphetamines regularly. You used Xanax to help you sleep and that about two years ago, you used steroids to “get healthy”. You went to the gym and gave up cigarettes.
94 You admitted to using some “party drugs” when you were out socialising at that time. When asked how they affected you, you replied that you had not used enough of the substance to know of any pattern of how it affected you.
95 It appears that you must have returned to abusing drugs 7 months later as it was said on your behalf that it was your need to finance your drug habit which was a motivating factor for committing the offences before me. I will come to that aspect a little later on.
96 In her first report, Ms Mynard concluded that it was likely that you suffered from depressive symptoms most of your life, which manifested themselves as irritability and aggression in your childhood and adolescence which was masked by alcohol and drug use in your late teens to the time that she conducted the assessment. Ms Mynard thought that in spite of your indications to the contrary, your father leaving you at such an early age may have had lasting consequences.
97 At that time, you said you would engage in psychological counselling to address mental health problems and Ms Mynard was of the view that you would benefit from counselling to address depressive symptoms, drug use and addictive issues, as well as stress. You were deemed eligible to receive a mental health plan from your doctor so as to receive 12 sessions of psychological therapy over a twelve month period.
98 In a subsequent report dated 10 May 2012, Ms Mynard indicated that you had attended once for counselling since the last assessment session. At the subsequent assessment, on 10 May 2012, you told Ms Mynard that you had continued to struggle with your mental health over the past year and felt like everything had gone wrong for you. I note that this second assessment occurred three to five days before you committed Charge 11 and of course, you continued to commit offences after that. It is evident from the report that at that time you had been charged with offences which are presumably those for which you dealt with at the Magistrates’ Court on 7 August 2012.
99 You indicated stress from the current charges and trepidation about your future after sentencing. You indicated that you continued to struggle with the break-up of your previous relationship and had been having difficulty finding motivation to continue to run your concreting business. You had also been in a serious car accident and cut through a tendon in your hand, which resulted in operations and five weeks off work. Your concrete truck had been recently stolen, you told her, and you had not recovered this from the police as yet, which prevented you from working. Interestingly, the next offence which you committed between 13 May and 15 May 2012, was theft of a truck; you also stole the aluminium ramps on this occasion.
100 You explained at that time that you had been finding it hard to be motivated at work and had, on average, about one week of work in each month. When your truck had been stolen, which was several months before, you had found it even more difficult to find motivation so as to get your truck back from the police. You said that your life had been on hold for the last year, waiting for the outcome of Court and feeling that you could not make any plans or get on with your life. You continued to live with your parents and did not go out much socially; mostly you stayed at home and spent time with your dog.
101 At that time, Ms Mynard conducted a DASS assessment and found that your depression had gone from extremely severe to severe and that you then suffered from moderate anxiety and stress; previously you had had normal anxiety levels and severe stress levels. Using another assessment tool, you were found to have extremely severe depression and she said your symptoms had been present for over a year. She said that it appeared that your depression had become worse over time with more reported symptoms in the current assessment session. I note that in the space of about 12 months, Ms Mynard did not have the opportunity to assess you.
102 You reported that you continued to have problems trusting people, including issues with your current girlfriend, which was taking a toll on your relationship. I assume that this was a reference to Natalie.
103 At that time, you denied using any alcohol or illicit substances and explained that since the “current charges were instigated”, you could see how drugs had “ruined” your life and you did not want to go near them again. This is at odds with what your counsel has told me and what you told police regarding drug use and committing the offences before me. At the further plea hearing I was told that I ought disregard what you had said to Ms Mynard, in effect, in this respect. As I said at the time, I found it somewhat surprising that you would not be frank with your psychologist about any problems you were having. On the one hand you told Ms Mynard that you had seen the light and were not using drugs; on the other hand, you told police that this was a motivating factor for offending. I must say that I have had some difficulty with this aspect of the plea. In the end, although somewhat sceptical I must say, I accept that you were abusing drugs at the time of your offending; it would appear that addressing drug abuse is something that you have battled with from time to time.
104 In that second report you told Ms Maynard that after the Court matters were dealt with, you hoped to join with another man who owned a concreting business and work together. You said that knowing your future after the Court proceeding would be a big weight off your shoulders. When asked about your intentions for counselling, you said that you found it hard to motivate yourself to “go anywhere or do anything, it’s just hard to get there.” Obviously, it was not too hard for you to go places for the purposes of committing further offences.
105 In the second report, Ms Mynard said that you continued to struggle with your mental health. You now fitted the criteria for major depressive disorder, given the duration of your symptoms. Ms Mynard said that she would prefer to re-assess your stress and anxiety levels after the Court proceedings in order to ascertain specific situational or contributing factors. She said that it appeared that many longstanding family factors and relationship issues had contributed to your mental health issues and that as you grew older you were internalising many of the difficulties which manifested in depression and emerging anxiety problems. She again strongly advocated that you engage in counselling for mental health problems to assist long term improvement and reduce the likelihood of you returning to illicit substances “to self-medicate”.
106 The third report from Ms Mynard is dated 18 April 2013. She said that you were referred to her for psychological counselling under a mental health plan in August 2011. After an assessment in May 2011, you attended her rooms for one session in August 2011. You then attended in May 2012 on several occasions and then from July 2012 to January 2013 you attended eight sessions. She said that you continued to present with a depressive mood and intermittent substance use. You told Ms Mynard that you were not using any illicit substances.
107 In that final report, she said that she had been working with you in relation to various areas, including issues relating to your “ongoing depression”.
108 In sentencing you, although I do have some misgivings about your truthfulness in self-reporting to some extent, I take into account your diagnosed psychological state which I accept and allow for in sentencing. I accept that it will make time in custody harder for you than for someone not suffering from depression.
109 I take into account your pleas of guilty which were indicated at an early stage, which entitles you to a substantial discount in the sentence you would otherwise receive. I also take into account your level of cooperation with the police and facilitation of justice by making a statement following your interview.
110 The pleas of guilty that you have entered at an early stage mean that you have saved the witnesses the time and trouble of giving evidence at a committal hearing and at trial. You have also saved the community significant expense and time of contesting the matters.
111 I was told that your offending took place in the context of funding an expensive lifestyle – in particular imbibing ice on a daily basis. This would cost between $250 and $500 per day. As I have already mentioned, this is somewhat at odds with what you were telling Ms Mynard in that second report, where you were assessed during the time you were committing offences for which I now sentence you. Whilst it may be that you used the funds to finance drugs, I am not satisfied that this was the only motivation in any event. It appears that you were functioning fairly well in committing the offences such that if you were addicted to ice, which I am prepared to accept, it still did not seem to obstruct your capacity to burgle and steal. I was told that you have made significant attempts to address your problem with drugs, but you are yet to fully address this.
112 Unfortunately, even when you were given the opportunity to be assisted by Ms Mynard, you did not take advantage of this in a bid to avoid re-offending. Moreover, you were given the opportunity to change your ways by virtue of a Community Corrections Order which was also imposed on 7 August 2012 and notwithstanding your consent to abide by this, which must have been given in order for the Community Corrections Order to have been imposed. Notwithstanding this you were back committing offences some seven days later. This gives me cause for concern in terms of your prospects of rehabilitation, albeit that you have only one prior Court appearance.
113 The matters for which you were sentenced on 7 August 2012 are as follows:
(a)Five charges of theft, two of which were in respect of a motor vehicle, one of which was in respect of a boat and another which was in respect of a trailer;
(b)Traffic drug of dependence;
(c)Retention of stolen goods;
(d)Possess amphetamine and possess methylamphetamine;
(e)Possess a Schedule 4 poison;
(f)Four charges of dealing with property suspected to be proceeds of crimes;
(g)Transporting unauthorised explosives;
(h)Carry and possess prohibited weapons;
(i)Drive whilst authorisation suspended.
114 Your counsel said that whilst you acknowledged the impact you had on other people’s lives, you were able to conduct yourself well.
115 In sentencing you I must take into account your prior convictions and I have done so in helping me to determine what your prospects of rehabilitation are and the weight which I need to give to specific deterrence.
116 Mr Abela, I must say I have not seen any acknowledgment as to the impact you have had on other people’s lives, save for the expression of this through your counsel. Ms Mynard does not report any expression of remorse in this respect and indeed, some of the things you said to police in the records of interview reveal a level of self-justification on your part for behaving as you did. On the other hand, I accept that you have taken significant responsibility for what you have done and it would appear that you have been willing to admit to various matters which may have been difficult for the prosecution to prove.
117 Notwithstanding that you were either unwilling or unable to engage with Ms Mynard further after January of this year, you have expressed an acceptance that you would benefit from undertaking further and lengthy treatment to address your psychological issues. One of the reasons that you did not re-engage with Ms Mynard was because you were going well in relation to substance abuse. I also factor in that apparently for a period of time Ms Mynard was not available for personal reasons.
118 It is to be hoped that you will take advantage of any opportunity in the future to address your psychological difficulties. It is also to be hoped that you do not return to substance abuse, as this appears to have something to do with you committing offences, albeit that I do not accept it was the only motivating factor.
119 In sentencing you I must place some weight on specific deterrence and a good deal of weight, as I have said, on protection of the community.
120 I also factor in that this will be your first period in jail and that you are still a relatively young man. In view of your recent prior relevant matters, the fact that you re-offended after a Court appearance and the spate of offences for which I now sentence you, I rate your prospects of rehabilitation as fair at best. In so finding I have taken into account that you have not offended since your arrest, that is, since your arrest for these matters, and the family that hopefully awaits you upon your release from gaol will hopefully provide an incentive to conduct yourself well. I have also taken into account your work history and background and that since being on bail for these offences, including strict reporting conditions, you have abided by these.
121 In sentencing you, I have done what I can in order to maximise your chances of rehabilitation. However, the weight which I must give to other sentencing considerations must be adequately accounted for. I also have regard to the principle of totality.
122 The prosecution submitted that an appropriate sentence in your case would be between six to eight and a half years, with a non-parole period between four and six years. Ms Pillai submitted that the range had been given in light of current sentencing practice and provided me with a number of cases in support of this. Your counsel also provided me with a number of cases and submitted that the Crown range was too high and did not reflect current sentencing practice. I do not propose to analyse the cases individually in these sentencing remarks, but some cases had more application to your situation than others. I have also considered fairly recent Court of Appeal decisions where not dissimilar offending was involved. As is usually the case, no case was identical to yours but these have assisted to inform me as to current sentencing practice. Whilst the nature of offending may be similar in other cases, the number of offences varies widely, as does the value of the goods, impact on victims, the offenders’ criminal histories and individual aggravating and mitigating features. Also, you have committed a number of offences where the maximum is doubled, which separates you from some other cases to which I have had regard.
123 Having considered the submissions of counsel and having had regard to all relevant sentencing considerations including the weight which I attach to relevant sentencing principles and matters in mitigation, I am of the view that the Crown range is appropriate. However, after much consideration I have decided that I can do justice to all relevant sentencing factors and maximise your chances of rehabilitation by fixing a slightly lower non-parole period than that submitted by the Crown.
124 In a bid to accommodate totality, I have had to make orders for cumulation which are somewhat compromised.
125 Please stand up, Mr Abela.
126 In relation to all charges on the indictment and in respect of the summary offence, you are convicted.
127 I will first make the ancillary orders:
128 I make an order that a forensic sample be taken from you for the purposes of recording your DNA on the police database. I make the order because of the seriousness of the offending, because the order is not opposed, because of your prior convictions and also because it is in the public interest to make the order. I should warn you that if you refuse to co-operate with the authorised officer when the sample is taken then reasonable force may be used in order for this to be done.
129 I make orders for disposal and forfeiture of various items in keeping with the draft orders provided by the Crown which are not opposed by you
130 In relation to charges 1, 11, 13, 14, 17, 20 and 25 all driving licences are cancelled and you are disqualified from driving for a period of 3 1/2 years. In view of the sentence you are about to receive I do not think it is in anyone's interest for you to be off the road for any longer than that upon your release, so that you can hopefully try and get back into the workforce.
131 You are sentenced as follows:
132 Charge 1 – 6 months.
133 Charge 2 – 4 months.
134 Charge 3 – 5 months.
135 Charge 4 – 5 months.
136 Charge 5 – 12 months.
137 Charge 6 – 12 months.
138 Charge 7 – 3 months.
139 Charge 8 – 5 months.
140 Charge 9 – 5 months.
141 Charge 10 – 16 months.
142 Charge 11 – 10 months.
143 Charge 12 – 1 month.
144 Charge 13 – 11 months.
145 Charge 14 – 2 years, 3 months.
146 Charge 15 – 3 years. That will be the base sentence.
147 Charge 16 – 2 years.
148 Charge 17 – 2 years.
149 Charge 18 – 13 months.
150 Charge 19 – 2 years, 4 months.
151 Charge 20 – 2 years, 6 months.
152 Charge 21 – 2 years, 4 months.
153 Charge 22 – 12 months.
154 Charge 23 – 12 months.
155 Charge 24 – 6 months.
156 Charge 25 – 2 years, 3 months.
157 Charge 26 – 20 months.
158 Charge 27 – 20 months.
159 Charge 28 – 6 months.
160 Charge 29 – 6 months.
161 Charge 30 – 6 months.
162 Charge 31 – 2 months.
163 Charge 32 – 15 months.
164 In relation to the Summary Charge 33 you are sentenced to 6 months' imprisoned.
165 As I have said the sentence of 3 years on Charge 15 is to be the base sentence. I direct that the following periods of imprisonment be served cumulatively with each other and with the base sentence: 1 month from the sentences on Charges 4, 18, 22, 24, 28 and the summary Charge 33 (6m), 2 months from the sentences imposed on Charges 6, 10, 13, and 32 (8m), 3 months from the sentences imposed on Charges 14, 16, 17, 19, 25 and 27 (18m) and 4 months from the sentence on Charge 20 (4m).
166 This produces a total effective sentence of 6 years imprisonment and I direct that you serve 3 ½ years' imprisonment before becoming eligible for parole. If not for your pleas of guilty I would have sentenced you to a total effective sentence of 7 years 6 months with a non-parole period of 5 years' imprisonment.
167 I declare that you have already served 9 days by way of pre-sentence detention.
168 Is there anything arising from that, counsel?
169 COUNSEL: No, Your Honour.
170 HER HONOUR: Yes thank you. You may remove Mr Abela. We will now adjourn.
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