Director of Public Prosecutions v Accaputo

[2018] VCC 1979

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00909
CR-17-01787
CR-17-01788

DIRECTOR OF PUBLIC PROSECUTIONS

v

GUISEPPE ACCAPUTO
JOSEF MOLFESE

---

JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 November 2018
CASE MAY BE CITED AS:	DPP v Accaputo & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 1979

REASONS FOR SENTENCE
---

Subject:  Aggravated Burglary; Recklessly Cause Injury
Catchwords:  Totality Principle
Legislation Cited: Sentencing Act 1991;

Cases Cited:DPP v Bowden [2016] VSCA 283; the DPP v Hogarth [2012] VSCA 302; DPP v Meyers [2014] 44 VR 486; and DPP v Dalgliesh [2017] HCA 41

Sentence:  

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sharp	Office of Public Prosecutions
For Accused Accaputo	Mr N. Rudston	Emma Turnbull Lawyers
For Accused Molfese	Ms J. Hughes	Papa Hughes Lawyers

HER HONOUR:

1Giuseppe Accaputo and Josef Molfese, you have each pleaded guilty on indictment to one charge of aggravated burglary and one charge of recklessly cause injury.  These offences carry a maximum penalty of 25 years and five years imprisonment respectively.

2In addition, you, Giuseppe Accaputo, have pleaded guilty to one charge of theft, one charge of handling stolen goods, and one charge of possess a drug of dependence, namely cannabis.  These offences carry a maximum penalty of ten years imprisonment; 15 years imprisonment; and, in your particular case, five penalty units (given there is no suggestion that your possession of cannabis was for anything other than your own use.)  

3The maximum penalties to which I have referred reflect here of the seriousness with which parliament regards these offences.

The offending

4The details of your offending are set out in a document entitled, "Amended Summary of Prosecution Opening", dated 26 October 2018.  The contents of this document are not disputed by your counsel.

5In short compass, the complainant in this matter is Mr Abalos.  He was
18 years old at the time of this offending and had been a resident of a DHHS care facility for a number of years before receiving his own apartment in South Melbourne at the age of 17 years. The offences were committed at these premises.

6There were four offenders.  Only each of you and a man by the name of Ace Smith have been identified.  At approximately 2.51 am on Sunday, 8 November 2015 you, Mr Accaputo, and Smith attended at the South Melbourne address and met with Mr Molfese and the other male.  All four of you were buzzed into the building by an unknown resident and went to the complainant's apartment.  Abalos was at home with his girlfriend, Charlene Jones, and an associate, Stacey Peterson.  You all banged loudly on Mr Abalos' door and you, Mr Accaputo, yelled, "Open the front door.  Be a man".  Mr Abalos refused and said that he would open the door only if he was told what you wanted.

7Ms Peterson was insistent on leaving so Mr Abalos opened the door slightly, to allow her to exit, but in so doing gave you all the opportunity to force the door.  Mr Abalos tried to stop your group from entering by placing his back against the door and bracing his legs on the hallway cupboard.  Ms Jones tried to help
Mr Abalos by pushing against the door but they were simply not strong enough.  Mr Abalos told Ms Jones to go and hide in the lounge room, and, knowing that he was unable to keep the door from opening, let go and ran straight into his own bedroom, closing the door behind him.

8You, Mr Accaputo, entered, followed by Mr Molfese and the other male.  It is this act which comprises Charge 1, aggravated burglary.  The circumstances of aggravation are particularised as knowledge as to a person being present.  You, Mr Molfese, told Mr Accaputo to kick the door in.  Mr Accaputo then smashed open the bedroom door, assisted by the unknown male, who helped you push it open.  The three of you then entered Mr Abalos' room.

9Mr Smith entered the lounge room and approached Ms Jones, who was sitting on the couch, telling her to “get the fuck out.”  Mr Smith grabbed Ms Jones by the jumper and dragged her from the apartment, out into the hallway where
Ms Peterson was standing, telling her to, "Fucking stand over there.  Don't fucking go anywhere".  Mr Smith then remained outside, standing, watching over Ms Jones.  You both then assaulted Mr Abalos as he lay on the ground, trying to protect himself.  He screamed, "Stop, stop.  Leave me alone.  Stop.  Enough.  Go away".  During the course of the assault Mr Abalos was struck with a wheel brace and stabbed with a knife as he lay on the ground.

10Photos were tendered of the injuries which you caused.  You each bear responsibility for the injuries incurred, which include wounds to Mr Abalos' scalp, left ear, right shoulder, right elbow, left shoulder, chest and left buttock. His injuries required suturing and dressing.  It is this assault which comprises Charge 2 on the indictment, recklessly cause injury.

11Witness, Jones, heard a male voice say, "Where's the bike, where's the bike?"  The same voice said, "If I don't get the bike back tomorrow we are going to come back and shoot you".  It is suggested that this incident arose in the context of a belief held by each of you that Mr Abalos had stolen a motorbike from you, Mr Accaputo, which you had initially stolen from its rightful owner.

12It is clearly a senseless and violent act, committed in what I would also describe as senseless circumstances against a vulnerable victim.  I find the recklessly cause injury at the higher end, given it was an attack by two persons using weapons whilst your victim was prone and unable to defend himself.  It was more good fortune than good management that the injuries suffered by
Mr Abalos were not far more serious.  This attack occurred in his own home, something he had strived to achieve and an environment in which he was entitled to feel safe.

13You, Mr Molfese, ended the assault by telling the others, "Enough".  All four of you then left the premises.  Mr Abalos was subsequently conveyed to the Alfred Hospital where he received treatment for his injuries.  This completes the factual basis for your respective pleas of guilty to aggravated burglary and recklessly cause injury.

14In terms of the additional charges faced by you, Mr Accaputo, at approximately 9.45 am on Friday, 13 November 2015, police located a Ford Territory in the driveway of 56 Barkly Street, St Kilda.  At that time the vehicle was bearing stolen registration plates.  A search of the vehicle revealed personal items of yours including the jacket that you wore during the assault on Abalos on
8 November.  Also located in the vehicle was a small quantity of cannabis.  These facts comprise the charges on the Indictment of theft of motorcar, handling stolen goods and possess.

15At approximately 4 pm on 13 November 2015 you, Mr Accaputo, were arrested by police.  During the recorded interview you admitted going to Park Towers with Mr Smith at the time of the aggravated burglary incident but stated that you did not know the identity of the other two males present and that it was not your "beef".  You told police that you did not attend at the complainant's apartment but stayed down the corridor and out of sight where you were unable to see or hear what went inside the complainant's apartment.  You stated that the stolen Ford Territory, located by police on 13 November, had been given to you by an associate whom you refused to name, stating that you had that it feeling was stolen when you drove it.  You admitted that the cannabis in the vehicle was yours.

16You, Mr Molfese, were arrested and interviewed on 28 March 2016.  As is your right, you made a no comment record of interview. 

17In terms of the charge of aggravated burglary I reflect on the recent decisions of the Court of Appeal which include that of: the DPP v Bowden [2016] VSCA 283; the DPP v Hogarth [2012] VSCA 302; and DPP v Meyers [2014] 44 VR 486. I have had recourse to each of those decisions.

18In DPP v Meyers the court referred to Hogarth and said that:

"Hogarth established the current sentencing practices for serious forms of aggravated burglary needed to change as they did not reflect the objective seriousness of such offending.  Aggravated burglaries which involve confrontation and violence or threats of violence should be viewed very seriously whether the target of the attack is a former domestic partner or a person against whom such other grievance is held".

19Further, the decision of Meyers, referred to determining the appropriate sentence for an offence of aggravated burglary through an assessment of the seriousness of the offence and included a number of non-exhaustive considerations as being relevant to such an assessment.

20In terms of this aggravated burglary you both forced entry to the victim's home under some resistance.  Your entry was ‘en masse’ in the sense that there were four offenders in total.  You entered with an intention to assault in the early hours of the morning, well aware that there were persons present.  You exposed others besides your intended victim to that violent entry.  There must have been some degree of planning given it was a targeted entry and you meet as a group beforehand.  It is a serious offence and I find the moral culpability of each of you to be at the high end.

21Your intent on entry is a significant feature going to the gravity of your offending and is informed by the actions which took place once inside the premises.  I bear in mind that the offence of aggravated burglary is complete upon entry and that any sentence on the particular charge cannot involve punishment for what happened post-entry.

22In a subsequent decision of DPP v Dalgliesh [2017] HCA 41 the High Court held that a sentencing court will fall into error treating current sentencing practices as restrictive on the position of a sentence that would otherwise be appropriate in all the circumstances of a case. Dalgliesh does not affect the conclusion of the Court of Appeal in relation to sentences for aggravated burglary, that the current sentencing practice has been inadequate.  It does not affect the principles which I take to be applied by sentencing judges in assessing the objective gravity of the offending in such cases.

23Relevant overall is the co-accused, Ace Smith.  On 30 May 2016 Mr Smith appeared in the County Koori Court and pleaded guilty to charges on two separate indictments.  Indictment No.G10069027 related to one charge of aggravated burglary with a person present and one charge of common law assault to Brendan Abalos, relating to the same events to which each of you have now pleaded guilty.  He was sentenced by His Honour Judge Grant on 18 July 2016.  On the charge of aggravated burglary, Smith was sentenced to three years imprisonment, and on the charge of common assault Smith was sentenced to 12 months imprisonment, six months of that sentence being cumulative on the sentence for aggravated burglary and forming a total effective sentence of three years and six months.

24Whilst I accept that the principle of parity between his sentence and that which is to be imposed on each of you maintains some relevance overall, of notable difference is that Smith is intellectually disabled, pleaded guilty at an early opportunity and played, a somewhat, lesser role in the offending.  I note that the fourth male remains unidentified.

Guiseppe Accaputo

25In terms of you, Mr Accaputo, I have taken into account matters personal to you and the written submissions which have been filed on your behalf.

26You were born in October 1973.  Your mother was a full time home maker and your father worked as a butcher.  You are the eldest of three brothers and grew up in the Tullamarine, Greenville and Melton areas.  You left school at approximately15 years of age and commenced work in your father's butcher's business at the Victoria Market.

27You married at around 20 years of age and by 21 years had bought your own butcher's business.  In 1997 your first son, Sam, was born.  Your second son, Adrian, was born in 1998.  He was unfortunate enough to suffer severe autism spectrum disorder.  Soon afterwards your marriage began to undergo difficulties.  You changed your work environment and commenced work as a concreter.  You later rekindled your marriage and set up another butcher's shop in North Coburg.

28Your relationship with your wife has been characterised by reconciliations and separations.  You struggled in this context and ultimately relinquished your business in North Coburg.  When Adrian was around eight years of age your wife placed him into care.  Family Court proceedings needed to be launched, which took about 12 months.  Adrian was placed in the care of your mother.  I am told he is now age 20 years and still requires considerable assistance.

29What has occurred in the difficulties you have had in dealing with your domestic relationship is a resort to drug use.  It may well be that your drug use has in turn contributed to those difficulties.  You apparently progressed from reliance on alcohol to cannabis and then to methylamphetamine.  This also has a direct correlation with your prior criminal history and I am told that you were using ice at the time of the offences before me.

30In terms of your prior criminal history you have some 15 court appearances which span the years 1997 to 2015, effectively from the time of the birth of your first child.  This history reflects driving offences, dishonesty, drug use and failures to abide by court orders, including bail, intervention orders and orders against your licence.  The offending in that history is not at the higher end of the criminal spectrum but has been relatively constant and is a reflection of your drug use and abuse. 

31You are not to be punished again for this history but it provides some guidance for the weight that needs to be given to specific deterrence and the need to protect the community from you, both principles which have relevance to your case.

32You were remanded into custody in relation to these matters on
13 November 2015.  Since this time I am told you have been at liberty for less than two months, that is the period between 4 January 2018 and 2 April 2018.

33On 23 February 2016 you were apparently sentenced to 214 days imprisonment by the Magistrates' Court for a range of theft and drug offences.  On 9 June 2016 you were sentenced by the Magistrates' Court to a period of 18 months with a non-parole period of 12 months imprisonment before being eligible for parole for charges of robbery and theft of motorcar.  On 28 June 2016 you received a further sentence of two months imprisonment, to be served concurrently, for offences of dishonesty, driving and drug related matters.

34On 3 February 2017 you were sentenced by the County Court to 16 months imprisonment in combination with a 12 month community corrections order for a charge of armed robbery.  I will return to this matter.

35You were released from that term of imprisonment on the 12 month corrections order in January of this year after serving what had been your longest period in custody to date. 

36I am told that following this release you were able to see your sons for the first time in about ten years.  You had determined to become a better role model and obtained work as a concreter.  You had also passed your driving test.  Unfortunately at the beginning of April 2018 you relapsed into drug use and once again were remanded into custody by 2 April.  You breached the community corrections order on which you had been released and have remained in custody since this time.  Your bail was revoked in relation to the matters before me on 20 April 2018.

37This sequence of events post 8 November 2015 is part of your personal circumstances to be taken into account and confirms my initial concerns that specific deterrence and protection of the community are of significance in any sentence to be imposed. 

38In terms of your difficulties in the custodial setting your counsel raises your diagnosis of diabetes and that you suffer from both anxiety and depression.  Materials have been tendered on your behalf and I have taken these materials into account.  I do accept that you suffer from each of these conditions given the medical records which have been provided but on the evidence before me, as it presently stands, I am not satisfied that any of those conditions make your time in custody more burdensome.

39In terms of the prospects which you do present for rehabilitation, you remain supported by your family and desire a continuing relationship with your sons.  You have been regularly visited by family in custody and intend residing with them upon your eventual release.  Your father has had a diagnosis of bowel cancer and suffers a range of ailments.  You hope at some point to be in a position to assist him during his period of ill health.  This, of course, will be conditional on your ultimate rehabilitation.

40You also have employment available as a concreter in accordance with the reference tendered on your behalf, authored by Mr Joe Zappula. 

41You have been attending Alcohol Anonymous and Narcotics Anonymous as a prison recovery program since August 2018.  You have also completed programs whilst undergoing your most recent sentences and whilst on remand.  I have been provided with a clean urine screen dated 28 June 2018. You obtained a billet's position whilst in custody.  These are all matters which will be taken into account in your favour.

42Tendered on your behalf was a report from consultant psychologist, Ian McKinnon, dated 11 October 2018.  He has diagnosed you with poly-substance abuse disorder, which perhaps unsurprisingly, in his opinion made a significant contribution to your offending.  In that report Mr McKinnon makes an assessment of your prospects for rehabilitation but I note that at the time of forming his opinion he had not been appraised of matters which have arisen since 2015 in terms of your criminal history.  This limited the weight which could be given to that assessment in terms of your prospects.

43Mr McKinnon provided an addendum report dated 30 October 2018, having been supplied with your updated criminal record.  His indication was as follows:

"These more recent convictions do not substantially change my opinion of
Mr Accaputo and his prospects for rehabilitation.  They do suggest that his antisocial traits will be a bit harder to extinguish.  However, Mr Accaputo's previous work history and self-employment, combined with a high degree of motivation to rehabilitate himself, suggests that he has reasonable prospects in doing so with sustained effort, assistance and supervision in the wider community".

44I do take the contents of both reports into account.  He does indicate that you currently have high levels of remorse and positive motivation.  He says you are of normal intelligence.  Axiomatically, he sees your recovery from drug addiction as being the primary factor which needs to be resolved in order to improve your prospects for rehabilitation.

45It would appear that you are in the infancy of wanting a different life for yourself.  I can only hope that this current desire grows as it is in your interest, that of your family and, of course, that ultimately of the community.  At this stage I can do no more than assess your prospects of rehabilitation as being guarded. 

46You have obviously pleaded guilty to the matters which are now before me, the matters resolving on 3 August 2018, in advance of the matters being listed for trial that same month.  I accept that your plea of guilty has utilitarian value.  It has served the court time and expense and the witness the need to , at least at trial, the offences of 8 November 2015.

47Based on the report of Mr McKinnon I am satisfied that your plea of guilty is demonstrative of some remorse.  You have also written a letter to the court dated 4 November 2018 in which you also refer to your remorse.  These matters will also all be taken into account in your favour.

48I bear in mind that before you reached the decision to plead guilty to the charges the proceedings have had a long and protracted history that was not all of your own making.  Your committal commenced on or about 19 April 2016 and was adjourned on a number of occasions.  On 1 July 2016 the committal recommenced with your co-accused, Mr Molfese, joining the process.  It was further adjourned to 16 August 2016 and again to 4 September 2017, on which date you were both committed for trial.  The trial was originally listed in May 2018 but due to the unavailability of the informant as a witness, the trial was relisted for 6 August 2018.

49This process has limited your opportunity for concurrency to the other sentences to which I have referred and is also a factor I take into account.  I note, however, that you had not determined to plead guilty until each of these opportunities had passed.

The Community Correction Order

50In terms of any sentence imposed upon you this day I am also dealing with a contravention of community corrections order, to which I have already referred, and which had been imposed upon you by the Melbourne County Court on 3 February 2017 for a charge of armed robbery which occurred on
7 February 2015.

51In short compass, the facts of that armed robbery involve a financial dispute between you and your victim in relation to him minding your dog.  You confronted the victim and produced a butcher's knife.  You were with another person at that time.  The victim ran from you and you gave chase.  He was assaulted and you stole his house key on a black lanyard whilst still in possession of the knife.  It would appear you used that key to retrieve your dog.  I do accept that submission that the circumstances of the armed robbery were towards the lower end of the scale for an offence of its type.

52In relation to that offence you were convicted and sentenced initially to
16 months imprisonment, 149 days were reckoned as having been served under that sentence.  Upon your release you were to complete a community corrections order for 12 months.  The term of imprisonment imposed was to be served concurrently with the sentence that you were then presently undergoing.

53It was on 4 January 2018 that you were released from that term of imprisonment and in a position to commence the Corrections order.  Whilst there was initial compliance with the order you ultimately re-offended and hence are in breach. There were also issues of non-compliance.  The contravention of community corrections order report dated 16 June 2018 states:

"Mr Accaputo commenced this order in a positive manner by attending appointments as scheduled and engaging appropriately, although failed to demonstrate a level of insight into the seriousness of his offending behaviours.  It is of concern that only three months after being released from custody
Mr Accaputo was remanded back into custody due to alleged further offending.  This only further highlights Mr Accaputo's pre-contemplative nature and the minimal insight he possesses into his offending behaviours.  As a result of this Mr Accaputo was unable to make any significant progress towards the rehabilitative conditions on this order".

54Your degree of compliance is a factor which I need to take into account.  Overall there is a failure by you to take up this opportunity.  This failure confirms, in my mind the indications, which I have already given that I will need to give weight in sentence to both specific deterrence and the need to protect the community from you. 

55The totality principle requires that when an offender who has been sentenced to multiple terms, or is otherwise to serve multiple sentences, then the sentence should ensure that the total sentence remains what is just and appropriate for the whole of the offending.  In terms of dealing with any punishment for the contravention of a community corrections order, together with the re-sentencing for the charge of armed robbery, totality between those matters with the matters on the indictment before me will be a relevant sentencing factor.

Josef Molfese

56In terms of you, Mr Molfese, I take into account your personal circumstances and the written submissions which have also been filed on your behalf.  You are presently 30 years of age and were 27 years of age at the time of your offending.  You grew up in Melbourne with each of your parents and a younger sister.  When you were around ten years of age, your parents separated after what had been increasing conflict within their relationship.  You resided with your mother for the next two years before being sent to live with your paternal grandparents.

57You attended two primary schools and seven secondary schools as you were having difficulty concentrating and time displayed behavioural difficulties.  You did manage to complete your 10 at Thomastown Secondary College.  It was at the age of 14 years that you were diagnosed with attention deficit hyperactivity disorder.  You were prescribed Ritalin, which may well have addressed the problem, but your father was unsupportive of the medication regime and your continued prescription ceased.

58Upon leaving school you have had a number of short term employment positions including plastering, concreting and working in a mobile phone store.  You have not yet established yourself in any long term paid work. 

59It is a sad reality that you commenced drug use at the age of approximately 15 years.  You were addicted to heroin for nearly ten years and used methylamphetamine from the age of 16 years.  Your preparedness to be involved in this offending would appear to be in the context of drug use.

60I am told you have a five year old son with whom you have a strong relationship.  It is submitted on your behalf that the future of this relationship remains a motivating factor for you and provides encouragement for your rehabilitation.  You are also fortunate to retain the continuing support of your family.

61You have a prior criminal history of some nine court appearances which commenced in 2007 when you were dealt with for charges of intentionally and recklessly causing serious injury and received a sentence of three years detention in a Youth Justice Centre.  You have subsequently been dealt with for offences of violence, dishonesty, drug possession and breaches of court orders.  Your criminal history reflects more serious charges than that of
Mr Accaputo, although understandably, by virtue of age, over a lesser period.  You will also not be punished again for your prior criminal history but like your co-accused, it is relevant to the assessment of the weight that needs to be given to specific deterrence and protection of the community.

62On 14 February this year you received a total effective sentence of 23 years and four months imprisonment with a non-parole period of 18 years and four months imprisonment.  This sentence was imposed by Her Honour Justice Dixon of the Supreme Court in relation to charges of murder, aggravated burglary, intentionally causing injury and theft.

63The murder was of a man by the name of Ricky Trinh and was committed on 18 March 2016.  The aggravated burglary and other related charges dealt with by Her Honour Justice Dixon were committed a matter of days before the murder.  The aggravated burglary involved the entry to an apartment of a 64 year old gentleman said to be known to one of your then co-offenders.  It appears that he was known to have quantities of prescription medication on his premises.  Once entry was gained by you and three others, the victim was pushed to the floor, assaulted and stabbed.  Cash and prescription medication was taken from the premises.

64The matters before me pre-date the offending which is the subject of Her Honour's sentence by a matter of some four months.  I accept that the principle of totality has particular relevance in your case.  In so doing I have regard to the delay in bringing the proceedings before the court even as a trial date due to no fault of yours.  The history is not unlike the one that I outlined in terms of the committal proceedings of Mr Accaputo.

65I am cognisant of the defence submission that the delay in disposing of this matter effectively deprived you of the opportunity to have the current charges heard together with the matters before Justice Dixon in December 2017 and to obtain the associated benefit of flexibility in concurrent sentences when there is some connection in the timing and to the nature of some of the offences. 

66You did not resolve to plead guilty until after the relevant dates had passed.  I am not satisfied that the sentence imposed by Justice Dixon would have been unaffected if that had been the case.  However, these are all relevant factors to take into account.

67There needs to be some representation of your offending on 8 November 2015 in the sentence I impose this day in order to properly reflect that it was separate offending, with a separate victim, and the need to reflect specific deterrence, protection of the community and your late plea of guilty.  I certainly accept the need to avoid a crushing sentence.

68Tendered on your behalf is a report authored by Warren Simmons, psychologist, dated 20 July 2017.  I understand this document was tendered on your plea in the matters before Her Honour Justice Dixon.  There is no updated material.  I have taken the contents of that report into account in a general way but it was of limited assistance in the circumstances.  There is no suggestion of any intellectual or cognitive difficulties, nor any continuing or existing mental health issues.  Mr Simmons describes your prospects for rehabilitation as ‘guarded’ and I accept this assessment.

69I have also had recourse to a reference supplied by your mother, Cindy Cotaldo, that appears to have been prepared for your plea before Her Honour Justice Dixon.  It does confirm the continuing support of your family at that time.

70I also take into account your plea of guilty.  You indicated a willingness to plead guilty on 6 August 2018 on the eve of the trial commencing.  I do accept that your plea of guilty in relation to the charges of aggravated burglary and recklessly cause injury has utilitarian benefit.  Your pleas have saved the court time and expense and the witnesses of trauma of having to relive the events of 8 November 2015 at trial.  I do accept your plea as representative of some limited remorse and these are all factors that will be taken into account in your favour.

71In terms of any sentence to be imposed upon you, parity is a relevant factor with your co-accused, Mr Accaputo.  Indeed, I can see no real point for any distinction between the two of you on the two main charges on the indictment.  Parity is not as relevant to your co-accused, Smith, for the reasons to which I have already referred.

72The basis purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing each of you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim. 

73I am also required to balance the interests the community does have in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.  I also take into account the principles of totality to which I have already referred, parsimony and proportionality. 

74I have taken into account the relevant sentencing guidelines referred to in section 5 of the Sentencing Act where relevant to your case.

75I will make the ancillary orders as sought.

Sentence

76I now turn to sentence.

77In relation to you, Mr Accaputo, and to the charge of aggravated burglary, you are convicted and sentenced to three years and eight months imprisonment.  This is the base sentence.  In relation to the charge of recklessly cause injury you are convicted and sentenced to 18 months imprisonment, of which six months is cumulative on the base sentence.

78In relation to the charges of theft and handling stolen goods, you are convicted and sentenced to an aggregate of eight months imprisonment, bearing in mind the principle of totality.  One month of that sentence is cumulative on the other sentences I have just imposed.  On the charge of possess cannabis you are convicted and discharged. 

79In terms of the indictment, your overall sentence is one of four years and three months imprisonment.  In relation to the charge of contravention of community corrections order, I find the charge proven.  You are convicted and sentenced to two months imprisonment for the contravention, of which one month is cumulative on the sentences otherwise imposed this day.  You are to be re-sentenced on the original charge of armed robbery.  In relation to this charge you are convicted and sentenced to two years imprisonment.  Eight months of this sentence will be cumulative on the base sentence and the other sentences imposed this day. 

80In terms of the overall sentence, if my maths serves correctly, it is a total effective sentence of five years.

81You are to serve a period of three years and six months before being eligible for parole and I reckon a period of 763 days as having already been served under this sentence.

82Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. Again, considering totality, if not for your pleas of guilty, I would have sentenced you to six years and three months with a minimum of four years and six months before being eligible for parole. You can be seated, sir.

83Mr Molfese, in relation to Charge 1, aggravated burglary, you are convicted and sentenced to three years and eight months imprisonment.  In relation to the charge of recklessly cause injury, Charge 2, you are convicted and sentenced to 18 months imprisonment.  Six months of the sentence on Charge 2 is cumulative on Charge 1, which comprises a total effective sentence of four years and two months imprisonment.

84As I have already referred, you are presently undergoing a significant sentence for a charge of murder.  The fact that you are already serving a lengthy sentence means that any cumulation upon the non-parole period will be expedientially more onerous than if it was cumulated upon a shorter sentence.

85In terms of the sentence which I have just imposed, nine months is to be cumulative on your present sentence.  The effect of my orders is that you now have a head sentence of 24 years and one month's imprisonment and I fix a new non-parole period of eighteen years and ten months imprisonment.  I reckon 974 days as already having been served in accordance with this sentence.

86Section 6AAA of the Sentencing Act also requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges in which totality still would have been an important sentencing factor. If not for your pleas of guilty I would have sentenced you to a sentence of 25 years with a non-parole period of 20 years and six months imprisonment.

87MS HUGHES:  Thank you, Your Honour.  Just is the - sorry, I did not hear if Your Honour reckoned the PSD.

88HER HONOUR:  I did.

89MS HUGHES:  Yes, sorry.  Thank you, Your Honour.

90HER HONOUR:  It never pays to remind me though.  Hopefully that maths is correct.  As indicated, I will make those ancillary orders, Mr Sharp.

91MR SHARP:  Thank you, Your Honour;

92MS HUGHES:  If Your Honour pleases.

93HER HONOUR:  Thank you.  Parties are excused.  I now have another matter to deal with.

94MR RUDSTON:  Your Honour, may I take an instruction before they are taken down?

95HER HONOUR:  Yes.

96MR RUDSTON:  Thank you.

97HER HONOUR:  Yes, well, if you need to approach.

98MS HUGHES:  May I be excused?

99HER HONOUR:  Yes, thank you, Ms Hughes, and thank you for your assistance, Mr Sharp.

100MR SHARP:  If Your Honour pleases.

101ACCUSED MOLFESE:  Thank you.

102HER HONOUR:  Thank you, Mr Molfese.

- - -