Director of Public Prosecutions v Day

[2020] VCC 1540

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00330

DIRECTOR OF PUBLIC PROSECUTIONS

v

WAYNE DAY
SEAN MORRISON
JUSTIN McEWEN
DAVID KARTABANI

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 September 2020
CASE MAY BE CITED AS:	DPP v Day & Ors
MEDIUM NEUTRAL CITATION:	[2020] VCC 1540

REASONS FOR SENTENCE
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Subject:  
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Hamnett
For Accused Day	Ms S. Poulter
For Accused Morrison	Mr J. Miller
For Accused McEwen	Ms S. Donajh with Mr Terry
For Accused Kartabani	Mr M. Kozlowski

HIS HONOUR:

1Wayne Day, on indictment C1912566 you are to be sentenced for eight charges of theft; one charge of attempted theft; and one charge of conduct endangering persons under s.23 of the Crimes Act.  You are also to be sentenced for the summary offences  committing an indictable offence on bail; driving whilst suspended; and failing to render assistance after a motor vehicle collision.

2Sean Morrison, you are to be sentenced for  10 charges of theft; and one charge of attempted theft.  You are also to be sentenced for the summary offence of driving whilst disqualified.

3Justin McEwen, you are to be sentenced for eight charges of theft and four charges of knowingly dealing with proceeds of crime under s.194(2) of the Crimes Act.  You are also to be sentenced for the summary offences  committing an indictable offence on bail.

4David Kartabani, you fall ultimately to be sentenced for on one charge of theft.

5The respective maximum sentences are for theft, 10 years' imprisonment; for attempted theft, five years' imprisonment; for the proceeds of crime offence under s.194(2), 15 years' imprisonment; and for conduct endanger persons, five years' imprisonment. Those are the - I stop to ask this question, which I should have done before perhaps. Ms Hamnett, that 15 years is correct, is it? It relates to that category of the offence under sub-s.(2) and sets out that maximum sentence.

6MS HAMNETT:  Yes, Your Honour.

7HIS HONOUR:  Thank you.  I return to my reasons.  As to the summary offences, maximum sentences are three months' imprisonment for committing an indictable offence on bail, six months' imprisonment for driving whilst suspended or disqualified, and eight months' imprisonment for failing to render assistance.

8You each pleaded guilty before me on 12 August 2020.  You were arrested on 3 April 2019, having been under surveillance by police in the course of committing Charge 18 on the indictment, theft.  Interviewed on that day you made no admissions, exercising your rights to silence.  On 14 September 2019 the charges against you resolved at committal, which went by hand-up brief.  You entered pleas of guilty.  The matter was then listed for a plea hearing in this court. 

9You receive the benefit of your pleas of guilty, which have facilitated the interests of justice and accepted responsibility.  Your pleas express remorse.  It is important that those  pleas have facilitated the interests of justice.  The Crown concedes high utilitarian value given the present impact upon the system, for example delay in trials,  caused by the COVID-19 virus.

10At your plea hearing, which ran on 12 August and 14 September 2020,
Ms Hamnett for the Crown tendered a written Crown opening.  She also provided written submissions and further submissions on sentence. 

11Justin McEwen, Mr Terry for you, tendered negative results of drug testing in remand custody.  He called your mother, Helen McEwen, and brother, Michael Bell, to give evidence on your behalf.  He also provided written submissions. 

12David Kartabani, Mr Kozlowski for you, tendered the CISP bail program progress report of - I have got here Ken Roberts.  Could somebody - if you, Mr Kozlowski, can make sure that is right.  I am not sure that it is.  It is dated 14 October 2019.  He also tendered letters of character reference by your mother and partner, the Community Corrections order a progress report of Elizabeth Kuri dated
24 July 2020, and the letter of your general practitioner, Dr S. Nata.  I spell that N-a-t-a.  That might also need to be checked.  On 18 September Mr Kozlowski tendered the email of Community Corrections case manager, Karina Vue, dated 16 September.  He provided written submissions on sentence.

13Wayne Day, Ms Poulter for you, tendered the forensic psychological report of Gina Cidoni, dated 8 August 2020;  a CISP bail reported dated 8 August 2019 by case manager Alison Portelli; urine test results and certificates related to programs undertaken in remand custody;  and a number of letters of character reference.  She called your mother, Christine Day, to give evidence.  Ms Poulter also provided written submissions on sentence.

14Sean Morrison, Mr Miller for you, tendered the psychological report of Kerrin Danswan, dated 28 July 2020; the letter of your mother, Lorraine Morrison, documents and certificates related to programs in remand custody.  Mr Millar provided written submissions on sentence.

15The circumstances of your offending are comprehensively stated in the tendered Crown opening, which is Exhibit A.  My own summary may therefore be shorter. 

16In the period, January to April 2019 the four of you were involved in theft of industrial copper wiring from a number of locations, mainly recreational reserves or sports grounds; but also construction sites and a school.  These locations were mainly in outer suburban areas of Melbourne.  There were other associated offences.

17There were 13 occasions of offending.  The typical method was to enter the site, usually in the early hours of the morning, to isolate electrical power at the relevant power box and remove wiring from the underground pits.  Power tools and vehicles were used to access the pits and to pull the wiring out.  Wiring was sold on to a recycling business, MB Recyling, at which you, McEwan and Kartabini, were employed.  The business was owned by your parents, Kartabani.

18As stated, there were other associated offences.  Charges of knowingly dealing with proceeds of crime relate to sales of wiring by you, McEwen, to MB Recycling.  The offence conduct endangering persons  was committed by you, Day, at a Bundoora site on 5 March.  Unusually, it was in the afternoon.  You were driving a utility motor vehicle, using it to pull an electrical sub-station from a wall.  It seems that the rope has broken and become tangled with the ankle of victim, Susan O'Connor, who had been playing tennis nearby.  She suffered a cut to her head and bruising.  You were unlicensed and failed to stop and render assistance.  A Nissan utility used in the offending was stolen in South Yarra on the night of 27th to 28 February.  You, Morrison, were arrested in that vehicle at MB Recycling on 3 April,  all four of you having been followed by a police surveillance team after a theft of wiring at a school in Plumpton, Charge 18.  You were driving whilst disqualified.  You, Day and McEwan were involved in Charge 18 and on bail at the time.

19Day and Morrison, on 12 March you were disturbed in the course of stealing wiring at a Hoppers Crossing recreation reserve.  You are to be sentenced for attempted theft, Charge 15.

20There is a particular distinction in this case between the value of the property stolen, for example, market value, and the broader damage or cost caused to victims; that is the full cost of replacement, which entails restoring the wire and siting to its former state.  That victim impact has been very high.  The tendered Crown opening tendered and written submissions provided on 12 August set out a measure of full cost of replacement in that sense.  This includes a cost of repairing damage caused in the attempted theft at Charge 15.  The total figure of this, that is across all theft charges, is about $630,000.  The Crown submission attributes over 500,000 to those thefts in which you were involved, Morrison; over 350,000 in your case, Day; over 210,000 in your case,  McEwen; and about $40,000 as to you, Kartabani.  The different total of these is explained by the fact that more than one of you were involved in a number of thefts.

21On 12 August I requested that the Crown attempt a measure of the lesser market value figures.  Accordingly, a further Crown submission was provided.  An amount reflecting each charge is not possible, a replacement cost of only  the copper  being measurable in just eight of the 12 completed thefts.  Insurance documentation is not absolutely clear and there is considerable variation in the stated cost of the wire per metre.  It can be seen that the value of wiring stolen is significantly less than full reinstatement cost although still substantial.  For example,  the eight thefts roughly measured on that total about $150 to $160,000.

22The available evidence of benefit shows that it to be likely much less.  You, McEwen, committed four offences of knowingly dealing in proceeds of crime.  They are sales of stolen wiring to your employer, MB Recycling.  You were paid about $1300 (Charge 2), $3000 (Charge 4), $400 (Charge 6), and $1100
(Charge 13).

23I do not speculate about what arrangement existed with MB Recycling and what other stolen wiring may have been sold on.  I repeat that many of the figures I raise are approximate and in part the product of my own arithmetic. 

24The value of goods stolen, the measured victim impact statement and shown benefit to the thief are indicators of the level of criminality.  Here they can be measured less precisely than in other cases.  However, the value of wiring stolen was substantial and the cost and damage caused even more so.  These are relevant adverse features of the offending.

25The series of offences here were clearly connected by association of offenders, organisation and method.  There is a sense of the broadly complicit.  However, you are not charged with a Giretti type business, or criminal operation in that sense.  You must be sentenced individually in accordance with the individual offences committed by each of you.  Of course a number were committed by more than one of you.

26With the exception of Kartabani, each of you were involved in multiple thefts amounting to very considerable cost and damage.  Your offences were organised, planned and executed with appreciable skill and sophistication.  The offending is correctly described as brazen.  It ran over a significant period.  At times it also created risk to the community.  There was submission to me about the exact circumstances and level of this.  At least that the method of offending often meant access to and opening the power boxes raised risk of serious injury to others.  The choice of location, mainly public recreational areas, exacerbated this.  This feature of public risk is not relevant to Charge 1.  That theft did not entail access to a power box.

27Applicable to all three of you to be sentenced today, the clearly serious circumstances of offending make relevant sentencing considerations of moral culpability, deterrence, denunciation of the offending and proportionate punishment of it.  There must be sentences of imprisonment.  The issue raised by counsel of two of you, you, McEwen and Day, is the structure of that sentence.

28As I have said, you must be sentenced individually.

29Justin McEwen, you are 36 years of age and presently await this sentence in remand custody.  You were raised in the north-west of Melbourne, as the middle of three sons.  Your childhood seems to have been well supported by family.  You enjoyed school and completed Year 12.  After school you have worked consistently with a car company,  as a supervisor at a milk  production business and then for a labour hire company, mainly in warehousing work.  You began working for MB Recycling about 10 months before this offending. 

30Drug use has been a problem for you and is said to be the motivation for these offences.  You began using so called recreational drugs such as ecstasy in your very early 20s.  You began to use ice amphetamine in your mid-20s,  at first to assist shift work at the milk production factory.  Mr Terry stated that you became addicted.  There was a period of abstinence from 2015 when placed on a Community Corrections order.  However, the emotional impact of your father's death from Parkinson's Disease and dementia in 2017 caused you to relapse.  Your mother gave evidence about the effect on you and your family of your father's decline in a nursing home.  You are said by her and your brother to wish and be ready to reform from drug abuse.

31Your criminal record states four prior court appearances between March 2014 and January 2017.  There are offences of dishonesty and driving offences.  There is drug offending in January 2017, possession of methamphetamine and cannabis.  This is your most serious offending.  You have been placed on Community Corrections orders, it seems twice before.  There is an appearance in October 2014 for breach of Community Corrections order.  I was told that you ultimately completed these orders.  Your criminal history is not very long.  However, it must be taken into account.  When you leave prison you are able to live with your mother. 

32Mr Terry put, and I take into account, moderating factors which should be balanced against the adverse features in the circumstances of offending.  They include your plea of guilty and cooperation, a good work history and family support, which is consistent with positive prospects for rehabilitation.  Whilst you have coped well and productively in remand, for now almost
18 months, the present COVID-19 situation makes imprisonment harder.  This is both in terms of risk, anxiety about that and the restrictions to movement, family contact and programs made necessary.  I accept that you have prospects of rehabilitation, if you have the capacity not to return to drug use.

33Mr Terry submits that I impose a Community Corrections order upon release from prison after a period of further custody. He points to an available total period of about two years and five months, given the relevant Sentencing Act provisions.

34You are to be sentenced for four charges of theft, charges 14, 16, 17 and 18, and four charges of knowingly deal with proceeds of crime, charges 2, 4, 6
and 13.  The thefts caused replacement cost and damage ranging between 30 and almost $80,000.   The only available estimate for actual value of the wiring is $40,000 in respect of Charge 18.  The sales of wiring to your employer returned the relatively modest sums I have earlier stated. 

35I have formed the view that the magnitude and circumstances of your offending require a sentence of imprisonment with a minimum term.  Its length will be reduced by those moderating factors identified.

36There is the need for some cumulation between sentences.  That should be relatively modest or at least moderated by the principle of totality.

37Wayne Day, you are to be sentenced for eight charges of theft, one charge of attempted theft and conduct endangering life.

38You are 35 years of age, awaiting this sentence in remand custody.  Upon arrest you were remanded for 29 days until receiving bail in late April 2019.  The tendered CISP bail program report is fundamentally positive for the period April to August 2019.   You were arrested for further offending on 5 November.  On 11 December your bail on the matters before me was revoked.  You have spent 274 days in custody related to these offences.  There was a further 36 days served upon your 5 November arrest.  That will be taken into account in the way that I described prior to commencing my formal reasons.

39You were raised in the Taylors Lakes area and have two brothers and sisters.  Your older brother has also used drugs.  Ms Poulter states a good upbringing.  Your parents are separated; but both remain supportive of you.  Your mother has full time care of your seven year old son, under the supervision of Department of Health and Human Services.  You left school during Year 11 and then completed a plumbing apprenticeship.  You worked in that and in the air conditioning field.  You lost that job because of drug use when 26.  There has been some but not constant employment since.

40You began using cannabis at 17, then ecstasy until your early 20s.  You report to psychologist, Gina Cidoni, problematic use of ice and alcohol over time.  There have been periods of abstinence or control.  For example, when you have had care of your child.  His mother, who also used drugs with you, has not had custody of him since the age of 12 to 18 months.  You have been assisted in his care since by both your father and mother. 

41At times over the period you have used drugs heavily.  You committed these offences to fund drug use.  When you leave prison you intend entering residential drug rehabilitation at a facility near Shepparton called The Cottage.  I was told that you are found eligible and that a certain day of release will assist your entry.  I see no reason why that cannot be achieved in the context of parole release.  You look forward to reform from drug use and reconnection with your son.

42Your mother gave evidence of your difficulties with drug use, your potential without drugs to be a good father to your son, and that in her opinion you need an intense drug program upon release to succeed.

43Your criminal record states four prior court appearances between
December 2011 and June 2017.  There are dishonesty and driving offences.  There are subsequent or outstanding matters alleging theft offences dating to 2017, March and November 2019.  It is presumed that the November 2019 charges led to your most recent custody and revocation of bail.

44Your criminal history is relevant but not very extensive. 

45You have used your time in custody positively and appear drug free.  The report of psychologist, Gina Cidoni, states no cognitive difficulties.  No significant mental health problems are put on your behalf.

46Ms Poulter put to me, and I take into account, the following mitigating or moderating factors. 

47(1)   Your plea of guilty and cooperation.  

48(2)   That you are capable of rehabilitation given the assistance of drug rehabilitation.

49(3)   As to that you have family support and the proposed placement at The Cottage.   

50(4)   The impact of the COVID-19 virus pandemic upon the circumstances for you in custody.  I have earlier described this as it applies to all three men's sentence today.

51Your eight offences of theft vary in magnitude and damage caused.  Some are very considerable in this;  for example, Charge 3, as to which there is a total replacement cost of $135,000, and Charge 5, a copper wiring value of $30,000 and replacement cost of $90,000.  You must also be sentenced for the offence of conduct endangering Susan O'Connor and others.

52Ms Poulter submitted that I should impose a combined sentence of further imprisonment and a Community Corrections order, with a condition of residential drug rehabilitation upon release.  I have come to the view that this does not meet the seriousness and scale of your offences.  I should impose a head sentence and minimum term.  As stated, I see no reason why your placement in residential rehabilitation cannot be achieved in the context of parole, given commitment by you to that.  The moderating factors identified go to reduce the length of your sentence.

53Sean Morrison, as stated, you are to be sentenced for 10 thefts, one of which is theft of the Nissan utility, Charge 19, and one attempted theft.

54You are 28 years of age and also await my sentence in remand custody.  That has been a period of almost 18 months since arrest for these offences.  You were raised as the eldest of three children.  Your childhood was affected by what seems angry and erratic behaviour by your father, but you were fundamentally well cared for.  You are close to your mother and sister.  You left school, which was not successful, after Year 11.  You started but did not finish a carpentry apprenticeship.  You then worked consistently in short term labouring style employments.  You are in a relationship with a woman who visited you regularly in custody before restricted by COVID-19 regulation.  You contact by phone.  There has been an earlier, damaging relationship.  You have no children.

55Drug use played a role in losing your first job, an apprenticeship.  In late teenage you began experimenting in drugs such as ecstasy.  You ultimately moved to ice amphetamine and that has become your drug problem.  Drug dependence and use has combined with a heavily costing gambling problem, which has developed in recent years.  There have been court ordered opportunities for drug rehabilitation; but you have not benefited from that.  You committed these offences at times drug affected and to fund your drug use.

56You have, between September 2011 and September 2018 what I calculate to be eight prior court appearances.  There is some duplication, for example, a number of breach proceedings on community orders.  It appears that you were placed on a Community Corrections order at the time of this offence.  There are offences of dishonesty, driving and of violence.  A number of these relate to breaching family violence intervention orders, which I have presumed from other material provided concern an earlier dysfunctional relationship.  There are also drug offences. 

57Forensic psychologist, Kerrin Danswan, diagnoses depressive disorder, anxiety, stimulant disorder and gambling disorder.  She assesses high risk of reoffending and recommends residential drug rehabilitation upon your release from prison.  It is not put that the Verdins principles are relevant; but your psychological conditions are a part of your personal history and circumstances to be considered on my sentence.

58You have also used remand in a productive, rehabilitative way, subject to COVID-19 regulations.  Your mother's tendered letter speaks of remorse and a desire to rehabilitate. 

59It is conceded that a head sentence with a minimum term is the only appropriate sentence.  However, Mr Miller points to moderating factors which should reduce the length of that.  They include your plea of guilty and cooperation, your personal history and circumstances and that you should be seen as having prospects for rehabilitation.  I am guarded but do not discount that.  You are still only 28 and have support in the community.  The effects of the COVID-19 virus on custody is also relevant to you as to the other two men before me.  As I have said, the impact of that includes stress and risk, restrictions on freedom, family and other contact and access to rehabilitation programs.

60Drug dependence has been identified as a context for offending in respect of all three of you.  Whilst a relevant part of your personal histories and circumstances, it cannot be seen as a mitigating factor.

61The questions of parity and totality are raised.  I see little difference in role between you in the offences you each committed, and little significant difference in the matters relevant to your sentences.  You and your life situations are similar in many ways.  My ultimate aim is a just, total sentence for each.  That requires some moderation in individual sentences and cumulation between sentences.  Some sentences will be concurrent.

62Differences in total sentences are essentially the result of cumulation between sentences; that is, reflecting a difference in number of offences and, to some extent, scale of those offences.

63Although the offence of dealing with proceeds of crime has a higher maximum penalty, it is clear that the thefts of copper here, particularly those other than Charge 1, are the predominantly serious crimes. 

64After considering what I see to be the relevant matters, I sentence you, McEwen, Day and Morrison as follows.

65Justin McEwen:

on Charge 2, dealing with proceeds of crime, you are sentenced to four months' imprisonment;

on Charge 4, dealing with proceeds of crime, you are sentenced to six months' imprisonment;

on Charge 6, dealing with proceeds of crime, three months' imprisonment;

on Charge 13, dealing with proceeds of crime, six months' imprisonment;

on Charge 14, theft, 15 months' imprisonment;

on Charge 16, theft, 12 months' imprisonment;

on Charge 17, theft, 15 months' imprisonment;

on Charge 18, theft, 20 months' imprisonment;

on the summary offence of committing an indictable offence on bail, you are sentenced to two months' imprisonment.

66As to cumulation, I direct that two months of the sentence on Charge 4 and four months of the sentences on Charges 14, 16 and 17, be served cumulatively on the sentence for Charge 18 and each other. 

67I calculate that to be a total effective sentence of two years and 10 months, 34 months.  I set a minimum term before eligibility for parole of 21 months.

68Ms Hamnett, do you have the s.18 period for Mr McEwen?

69MS HAMNETT:  I do, Your Honour.  For Mr McEwen and Mr Morrison it's 541 days not including today.

70HIS HONOUR:  Thank you.  Yes, thank you.  I declare under s.18 pre-sentence detention of 541 days already served.

71Under s.6AAA of the Sentencing Act I indicate that I would have imposed a total sentence of five years with a minimum term of three years had you not pleaded guilty to these matters.

72Wayne Day:

on Charge 1, theft, you are sentenced to four months' imprisonment;

on Charge 3, theft, you are sentenced to two years' imprisonment;

on Charge 5, theft, you are sentenced to 20 months' imprisonment;

on Charge 9, theft, you are sentenced to six months' imprisonment;

on Charge 11, theft, you are sentenced to six months' imprisonment;

on Charge 12, reckless conduct endangering persons, you are sentenced to six months' imprisonment;

on Charge 15, attempted theft, you are sentenced to nine months' imprisonment;

on Charge 16, theft, you are sentenced to 12 months' imprisonment;

on Charge 17, theft, you are sentenced to 15 months' imprisonment;

on Charge 18, theft, you are sentenced to 20 months' imprisonment.

73As to cumulation, I direct that six months of the sentences for Charge 5 and Charge 18 and two months of the sentence for Charge 2 and four months of the sentences for Charges 16 and 17 be served cumulatively on the two year sentence for Charge 3.  On my calculation that amounts to a total effective sentence of three years and 10 months, 46 months.  I set as a minimum term before eligibility for parole, a period of two years and four months, 28 months.  I declare for my declaration under s.18 - what is that now, Ms Hamnett?

74MS HAMNETT:  Five hundred and 45 days.

75HIS HONOUR:  I do not know about - Day was bailed for a period.

76MS HAMNETT:  I am sorry, Your Honour.  There is 318 days in custody not including today.

77HIS HONOUR:  I declare under s.18, 318 days of pre-sentence detention already served.  Had you not pleaded guilty I would have imposed a sentence of six years with a minimum term of four years.

78Sean Morrison:

on Charge 1, theft, you are sentenced to four months' imprisonment;

on Charge 3, theft, you are sentenced to two years' imprisonment;

on Charge 5, theft, you are sentenced to 20 months' imprisonment;

on Charge 7, theft, you are sentenced to 15 months' imprisonment;

on Charge 8, theft, you are sentenced to six months' imprisonment;

on Charge 10 of theft you are sentence to 15 months' imprisonment;

on charge 15, attempted theft, you are sentenced to nine months' imprisonment;

on Charge 16, theft, you are sentenced to 12 months' imprisonment;

on Charge 17, theft, you are sentenced to 15 months' imprisonment;

on Charge 18, theft, you are sentenced to 20 months' imprisonment;

on Charge 19, theft of a motorcar, you are sentenced to six months' imprisonment.

79I meant to say in relation to Charge 15 that it was attempted theft.  If I did not I make that clear.

80For the summary offence of driving whilst disqualified you are sentenced to three months' imprisonment.

81As to cumulation I direct that six months of the sentences for Charge 5 and Charge 18 and four months of the sentences for Charges 7, 10, 16 and 17 be served cumulatively on the sentence for Charge 3.  That is a total effective sentence of four years and four months, 52 months.  I set a minimum term of two years and eight months, 32 months.

82I declare under s.18 pre-sentence detention of 541 days' detention already served.

83Under s.6AAA I indicate that had you not pleaded guilty I would have imposed a sentence of six and a half years with a minimum term of four years and four months.

84I feel that I omitted by oversight to announce my sentences for the summary offences committed by Wayne Day.  They do not change the total sentence.  On each of those summary offences, drive whilst suspended, failing to stop and committing an indictment offence on bail, you are sentenced to two months. Silence on cumulation indicates that they are concurrent sentences.  The total sentence I announced is not changed.

85All right, is there anything else that needs to be said or done in relation to those three men?  I am going to deal with Kartabani now.

86MS DONAJH:  Yes.  Your Honour, Ms Donajh for Mr McEwen.  I just may clarify is the maximum two years and 10 months or two years and 34 months?

87HIS HONOUR:  It is two years - this is Mr McEwen, is it?

88MS DONAJH:  Yes.

89HIS HONOUR:  Yes.  Two years and 10 months.  I said 34 months because that it is what two years and 10 months is.

90MS DONAJH:  All right, Your Honour, thank you.

91HIS HONOUR:  Yes, all right.  Now, if there is nothing else to do in relation to those sentences I will turn those men off.  Is there anything else I need to do or say before I do that?  I will leave the barristers on because I am going to deal briefly with the deferral of Kartabani.  So is thank you anything else,
Ms Hamnett, that I need to say or do?  In other words, auxiliary orders or the like.

92MS HAMNETT:  No.  I am sorry, Your Honour.  I believe that that is all but let me just confirm.

93HIS HONOUR:  If there is not, for example, you are not shut out from making contact with me in relation, for example, to forensic samples orders, although I suspect that they are not applicable here given change to legislation.  I presume that there are no orders in relation to forfeiture or the like.

94MS HAMNETT:  I believe there is a disposal and a forfeiture order in this matter, Your Honour.

95HIS HONOUR:  I have not seen it.  Just tell me what it is about.

96MS HAMNETT:  It is just in relation to the items that were removed at the time of arrest.

97HIS HONOUR:  All right.  Were they such things as power tools and chains and things like that or not?

98MS HAMNETT:  That is correct, Your Honour.

99HIS HONOUR:  I am getting one - something is getting printed out now.

100MS HAMNETT:  Yes, Your Honour.

101HIS HONOUR:  Thank you.

102MS HAMNETT:  I believe they should be before Your Honour.

103HIS HONOUR:  Is there a s.464ZF order?

104MS HAMNETT:  No, Your Honour.

105HIS HONOUR:  Good, thank you.  So the disposal order relates to those items.  Yes.  Well, I will make that order now.  I presume there is no objection to it.

106MR MILLER:  No objection, Your Honour.

107HIS HONOUR:  Yes, thank you.

108MR KOZLOWSKI:  No objection.

109MS HAMNETT:  Nothing further, Your Honour.

110HIS HONOUR:  Yes, I am going to - now, the one order refers to all four men in actual fact.  I do not think - I have not sentenced Kartabani yet but I do not see any problem, Mr Kozlowski, in making the order, or is there?  Does he need to be sentenced before I can make this order?  I think he probably does.  I will put a line through it.

111MR KOZLOWSKI:  I am not sure, Your Honour (indistinct) but it is not opposed in any event.

112HIS HONOUR:  Yes, I understand that.  I am going to put a line through it and initial that, through his name.  Well, they are various items that were used in accessing and extracting the wiring and mobile phones which were used, I am presuming, to keep contact between the offenders.  I do not see any power tools here but that is not a matter that I should be concerned about.  I am signing that order now.  Yes, thank you.  That having been done, can I turn the three men sentenced off now?

113MS HAMNETT:  Your Honour, may I just confirm that Your Honour has the forfeiture order and the disposal order and that both of those orders are (indistinct).

114HIS HONOUR:  No.  I have not got a forfeiture order.  Let us see if we can - - -

115MS HAMNETT:  I believe that also has been (indistinct).

116HIS HONOUR:  Let us see if we can find that.

117MS HAMNETT:  Thank you, Your Honour.

118HIS HONOUR:  There is one, is there?  Yes, there is one on electronic file.  I will similarly change by deleting Kartabani, and the forfeiture orders - yes, that is copper wiring and also various tools including an angle grinder or for a number of angle grinders.  All right, I will - now, there is no objection to that, is there?

119MR TERRY:  No, Your Honour.

120HIS HONOUR:  No.  Well, I will sign that order.  Yes.  Now, is there anything else, Ms Hamnett?  I am almost fearful of asking.  No.  Silence is consent.  All right.  Although Thomas Morloft is in running that one.  All right.  Now, I can - Mr Terry, you have joined us.

121MR TERRY:  Yes, Your Honour.

122HIS HONOUR:  I do not know at what stage.  You do not want me to repeat the sentence for your client, do you?

123MR TERRY:  No, no, I am fine.

124HIS HONOUR:  All right.  Well, we will - it is - yes, I will - well, the prisoners are going to be removed.  That means I will be turning them off.  I think I should keep all four counsel on, although the - and - well, there may be some - yes, the prisoners have gone.  We will turn them off now but we will keep the four members of counsel on.  All right.  Mr Kartabani has been kept on, yes.  I did not say that.  Thank you for that, Mr Stuart.

125All right, now, Mr Kozlowski, I have noted the previous hearing of this matter as 14 September.  It may be the 18th.  Can anybody help me there?  Is it the 18th or 14 September?

126MR KOZLOWSKI:  I am sorry, Your Honour, I am having real problems with sound at the moment.  I do not know if it is just me.

127HIS HONOUR:  All right.  I am told - - -

128MR KOZLOWSKI:  I did not hear what Your Honour said.

129HIS HONOUR:  All right.  It does not matter very much.  It is the previous hearing date of this matter.  I am told by my associate it was 17 September.  I have said variously the 14th and the 18th in my reasons, so I am wrong on both counts.

130MS HAMNETT:  Your Honour, I am afraid I am also having trouble with the connection now.

131HIS HONOUR:  Do you?  All right.

132MS HAMNETT:  Is Your Honour able to hear?  I am also having trouble with the connection.

133HIS HONOUR:  All right.  Well, I am hearing you.  Can you hear me better now?  No, you cannot hear what I am saying?

134MS HAMNETT:  No, Your Honour.

135HIS HONOUR:  This has probably - this has come about because we turned the prisoners off I suppose.  What are you doing at the moment?

136ASSOCIATE:  (Indistinct) anybody hear?

137HIS HONOUR:  Can anybody hear me?  No.

138MS DONAJH:  Your Honour, Ms Donajh for McEwen instructing Mr Terry.  I can hear you.

139HIS HONOUR:  Yes.  I can hear her (indistinct words).  Mr Kozlowski, can you hear me?  Can the person who spoke to me a moment ago, you can hear me?

140MS DONAJH:  Your Honour, Ms Donajh instructing Mr Terry for McEwen.  I can hear you.

141HIS HONOUR:  All right, I am not leaving because I am sick of it and want to go home.  Well, that is not the reason why I am leaving.  It is - can you convey to the others if you can that we are getting some technical help and I am going to come back in a short time when that is fixed up.

142ASSOCIATE:  I am telling her now.

(Short adjournment)

143

144HIS HONOUR:  Can everybody hear me?  Mr Kozlowski, you can hear me?

145MR KOZLOWSKI:  Yes, Your Honour, I can.  It is much better now.

146HIS HONOUR:  All right.  Now, Mr Kartabani?

147OFFENDER KARTABANI:  Yes, Your Honour.

148HIS HONOUR:  Mr Terry, can you hear me?

149MR TERRY:  Yes, Your Honour.

150HIS HONOUR:  Ms Poulter?

151MS POULTER:  Yes, Your Honour.

152HIS HONOUR:  I am sorry, Ms Hamnett, I left you out.  You can hear me?

153MS HAMNETT:  Your Honour, I can hear you but I cannot see Your Honour.

154HIS HONOUR:  Well, that might be for the best, and, Mr Miller, you can hear me.

155MR MILLER:  I can hear you, thank you.

156HIS HONOUR:  Because there was a changing of the guard you and our instructor, Mr Terry, and I do not have a recollection of announcing the minimum term.  That does not mean I did not.  Your client, McEwen, was sentenced to two years and 10 months, 34 months, with a minimum term of 21 months.  Did I announce that?

157MR TERRY:  You did, Your Honour, I heard that.

158HIS HONOUR:  Good, thank you.  All right, now, Mr Kozlowski, I think this can be dealt with quickly because it was you who raised, and I tend to agree with you, the alternative course of deferring your client's sentence.  Just recovering that so that my present position, not a concluded one, is clear, I see some inconsistency in the two reports from Community Corrections, one of them related to his present Community Corrections order, and the other, importantly, a suitability report for what I should do, and there are, as we covered last time, unsatisfactory aspects to that suitability report.

159At present I am considering a combined sentence of imprisonment and a Community Corrections order.  Your client is in a significant different position in terms of a number of offences and scale, but there are two factors that remain.  I have got to consider whether 59 days is sufficient, but I bear in mind in that, that I see a particular hardship in being returned to prison but I have to consider that in terms of the adverse aspects of the offending, but also, and this has attracted my attention the more, is he a satisfactory candidate for a Community Corrections order?

160Now, I do not want to jump unduly to conclusions adverse to him and I think your suggestion, which was coming to my mind as deferral of sentence is a very good idea.  I do not think it would harm things if he continued for a period of four months or so, complying with bail, and am I right?  Complying with his present Community Corrections order?  When does that expire, Mr Kozlowski?

161MR KOZLOWSKI:  14 November, Your Honour.

162HIS HONOUR:  Not far away.  Well, he does not have to comply with it for very much longer, but I think that is what I should do.  In fact that is a concluded view.  I think this is the right sort of case to defer.  I just wanted to re-cover the ground as to what I am thinking, for his benefit as much as mine or yours.  I am thinking of four months rather than a longer period.  What do you say about that, Mr Kozlowski?

163MR KOZLOWSKI:  I think that sounds about right, Your Honour, yes.

164HIS HONOUR:  All right.  So what is four months from today?

165ASSOCIATE:  January.

166HIS HONOUR:  Sorry?

167ASSOCIATE:  January.

168HIS HONOUR:  January what?

169ASSOCIATE:  What's (indistinct words) 25th.  Well, we will not be here.

170HIS HONOUR:  Well, we will not be here from the looks of things.  We might have to make it February.

171ASSOCIATE:  February, all right.

172HIS HONOUR:  We will make it, say, the second week in February.

173ASSOCIATE:  Second week in February.

174HIS HONOUR:  It will be a little bit longer, Mr Kozlowski, because of Christmas falling where it does.

175MR KOZLOWSKI:  Yes, Your Honour.

176ASSOCIATE:  Second week of February is Monday, the 8th.

177HIS HONOUR:  Monday, 8 February.  We will make it 8 February at 10 o'clock.

178MR KOZLOWSKI:  Yes, Your Honour.

179HIS HONOUR:  And his bail is extended on its present conditions.  Does that entail anything in the way of reporting of the like or anything unusual?  Not that that is particularly unusual.

180MR KOZLOWSKI:  There is nothing unusual, Your Honour.

181HIS HONOUR:  All right.  Well, his bail can continue to 8 February and I think I should order another suitability report.

182MR KOZLOWSKI:  Yes.

183HIS HONOUR:  If I do that now there will probably be - the assessment will be made too early, will it not?  What I would like is another suitability report which addresses any improvement of attitude but he is entitled to some time to achieve that.  So I cannot really dictate to Community Corrections that they do not assess him until late January or anything like that, can I?

184MR KOZLOWSKI:  I do not know if Your Honour can, and I agree, Your Honour, that it would be appropriate to have him assessed close to the return date.

185HIS HONOUR:  Yes.  That means I will just have to order another assessment then if he is going all right.

186MR KOZLOWSKI:  Yes.

187HIS HONOUR: All right, well, I hope he bears in mind the things that I have said the other day and today. So that is what I will do. Is it s.80A? Can somebody help me? Is that the section? Do you know, Ms Hamnett? Does anybody know? The Sentencing Act.

188MS HAMNETT:  I (indistinct words) Your Honour.

189HIS HONOUR:  Sorry, again?

190MS HAMNETT:  I can check that for you, Your Honour.

191HIS HONOUR:  Yes, all right, thank you.  All right, s.83A.  I think all I have got to do is set the date and to bail him to that day, although I have done that.  His bail is extended to that date.  All right.  So that having been done I do not think there is anything else I need to do.  I will adjourn this matter and turn you all off.  Thank you for your assistance.  It was not a very easy matter to present or to decide upon.  All right.  So we will turn you off now.  Thank you.

192COUNSEL:  As Your Honour pleases.

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