Director of Public Prosecutions v Ede
[2021] VCC 191
•26 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01281
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL EDE |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 February 2021, 15 February 2021 | |
DATE OF SENTENCE: | 26 February 2021 | |
CASE MAY BE CITED AS: | DPP v Ede | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 191 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Sentencing Act 1991;
Cases Cited:R v Verdins (2007) 16 VR 269; DPP v Heyfron [2019] VSCA 130; Piacentino v The Queen [2019] VSCA 153; Cottee v The Queen [2010] VSCA 285; Bugmy v R [2013] 249 CLR 571
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Cordy | Solicitor for the Office of Public Prosecutions |
| For the Accused | Dr T Alexander | AMT Lawyers |
HIS HONOUR:
Introduction
1Daniel Benjamin Ede, you have pleaded guilty to one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment, and one charge of theft, which carries a maximum penalty of 10 years’ imprisonment.
Circumstances of the Offending
2The circumstances of your offending were set out in some detail in the Summary of Prosecution Opening for Plea dated 24 December 2020, Exhibit 1 at your plea hearing.[1]
[1]A truncated Prosecution Opening for Plea dated 1 February 2021 was read out at your plea hearing on 1 February 2021, in accordance with the Koori Court protocol with regard to truncated hearings given the COVID-19 pandemic.
3Your offending can be briefly summarised.
4On 27 April 2020, you were employed as a manager at the Melbourne Gold Company, located at Level 7, 227 Collins Street, Melbourne. On the morning of 27 April 2020, you were working at the business premises. A few days earlier, on 24 April 2020, a large delivery of gold bullion worth approximately $2.3 million to $2.4 million was delivered to the Melbourne Gold Company and on the morning of 27 April 2020 it was situated in various locations within the business premises, including a number of safes. In addition to gold bullion were various bundles of cash in significant quantities, and property belonging to the business’ customers, such as jewellery and watches, that the customers had placed on loan to the company.
5Unfortunately for the owners of the Melbourne Gold Company, 27 April 2020 turned out to be a day like no other. You and your co-offender, Karl Kachami, had planned to stage an armed robbery at the Melbourne Gold Company. In accordance with that plan, Mr Kachami would attend the premises armed with a weapon so that this staged armed robbery could occur and you and Mr Kachami could both obtain stolen property.
6In the days leading up to 27 April 2020, Mr Kachami undertook various preparatory actions pursuant to this plan, including purchasing various items at Bunnings Warehouse, obtaining a hire vehicle, and attaching stolen registration plates to that vehicle.
7At about 9.27 am on 27 April 2020, you were working behind a front counter at the Melbourne Gold Company when you received a call on your mobile phone, after which you pressed the front door alarm panel, disarming the front door. A few minutes later, Mr Kachami entered the building wearing some of the items he had purchased in the days leading up to the offence and pushing a modified toolbox, which he had also purchased. Upon pressing a doorbell at the entrance you disarmed the door and allowed Mr Kachami into a waiting area before opening an internal door, letting Mr Kachami into the internal area. You then proceeded into a kitchen space, with Mr Kachami following you. Mr Kachami removed a black unregistered handgun from the inside of the front of his jacket while you turned around. You and Mr Kachami were, at this stage, feigning that what was occurring was a genuine armed hold-up, aware that CCTV cameras were recording your movements. Mr Kachami placed the handgun back inside the front of his jacket whilst following you.
8You then moved into a room where a safe was located, as well as the modem and hard drive for the CCTV cameras. CCTV captured you getting onto a desk to disconnect the CCTV. However, the hard drive had backup power and the CCTV continued to record. Upon you stretching out your arms and making a gesture with your right hand, Mr Kachami took the gun out of his jacket. You then opened and unlocked a safe and removed property belonging to the business’ customers, placing them into a container on the trolley. These were items that the customers had placed on loan to the Melbourne Gold Company and included property such as jewellery and watches. You emptied the safe. Mr Kachami removed a black bag from the trolley.
9
You then walked into a different internal room which had two safes in it, with
Mr Kachami following, pushing the trolley. You then took property from on top of a desk, from within a safe, and from a shelf, placing it in the container on the trolley and into the bag which Mr Kachami had. The property included solid gold bars, as well as bundles of $100 and $50 notes. Mr Kachami also took money and placed it within the bag. The bag also had a smaller blue or beige safe placed inside of it. At this point, CCTV showed an angle of the handgun, revealing that there was no magazine loaded.
10
After the toolbox and the bag were filled, you made a gesture with your hand and kicked at a case on the floor near a safe, which then contained over $4 million worth of gold bullion and $600,000 cash. Mr Kachami did not access that safe. The prosecution submitted that your movements were essentially an attempt to signal Mr Kachami’s attention to that safe containing the gold and cash, which
Mr Kachami did not see. Whilst I cannot be satisfied beyond reasonable doubt that this was your intention, clearly overall you were an active participant in this brazen charade.
11You and Mr Kachami maintained this façade by you lying down on the floor while Mr Kachami tied your wrists with cable ties produced from his jacket. Mr Kachami then left the premises, encountering two customers as he opened the front door to leave, leaving the door open, and the customers walked in.
12At about 9.38 am, you got to your feet and approached the two customers, saying 'Help, I’ve been robbed.' The customers pulled your hands free. At approximately 9.39 am, you called emergency services reporting a robbery where a male had produced a pistol, and requested police to attend.
13Upon police arriving approximately five minutes later, you were transported to the Melbourne West Police Station where you made a statement to the police detailing the supposed robbery.
14A stocktake following the offences revealed that the total weight of the stolen gold bullion stock (21.697 kilograms), scrap gold (6.525 kilograms), and jewellery (437.6 grams) was 28.66 kilograms, which equates to a value on the day for the gold theft of between $2,499,116 and $2,522,044, depending on market fluctuations. The total cash which was stolen was $716,970. Thus, the total value of the theft was between $3,216,086 and $3,239,014.
15In the days that followed this incident, Mr Kachami was observed engaging in various actions in connection with attempts to destroy any implicating material, and to conceal the proceeds of the crime. He was ultimately arrested on the afternoon of 29 April 2020.
16In the weeks that followed, and following police investigations and information from Mr Kachami regarding the location of the toolbox with stolen property contained within it, all of the stolen gold in whatever form was returned to the Melbourne Gold Company, together with a significant amount of the cash which had been taken. However, there remains a total of $333,420 in cash that was stolen, which has not been recovered.
17You were arrested and charged, having declined to comment on the allegations in your police interview, on 12 May 2020. You have been in custody since that time, a period of 290 days, up to but not including today.
Impact on Victims
18
Your victim in this matter, the operations manager of the Melbourne Gold Company, Mr Michael Kukulka, and his mother, Margaret, the finance manager of the business, both provided victim impact statements (Exhibits 2 and 3 respectively), setting out in some detail the impacts of your offending upon them. In addition to the significant consequences of your offending on them, with an amount exceeding $300,000 still unrecovered, it is clear from reading those victim impact statements that your behaviour represented a gross violation of trust, as
Mr Kukulka regarded you as a close friend of many years. Clearly, the shock, anxiety, damage to reputation and in particular violation of the victim’s sense of trust, remains profound.
19Victim impact statements are an important means through which victims of crime can meaningfully participate in the sentencing process, by informing the court of the often catastrophic and far-reaching consequences of offending upon them. In formulating an appropriate sentence in your case, I have taken into consideration the victim impact statements.
Nature and Gravity of the Offending and Your Level of Culpability
20In relation to Charge 1, aggravated burglary, I accept that this was an unusual aggravated burglary in the sense that there was not any confrontational aspect to this crime, nor was there any aspect of any victim being immediately put in apprehension or fear, as is often the case with regard to aggravated burglary offences. Nevertheless, this aggravated burglary represents an invasion of the victim’s business premises.
21As was made clear by Mr Kukulka in his victim impact statement, your actions in this regard caused him to feel a sense of violation, in that the offenders had essentially entered his business premises and stolen property belonging to him and his customers. I accept, as your counsel conceded, that this offence can be properly characterised as a mid-range example of the crime of aggravated burglary.
22In the circumstances of this case, in my view, the theft charge (Charge 2 on the indictment) encapsulates the very essence of this criminal endeavour and therefore represents the most serious charge to which you have pleaded guilty. As I have stated, this was a staged robbery to affect an extremely serious theft. Together with Mr Kachami, you essentially plundered the safes at the Melbourne Gold Company, stealing property worth in excess of $3 million, approximately $330,000 of which has not been recovered. The theft occurred only a matter of days after a substantial delivery of gold bullion occurred, a matter which, as the manager, you must surely have been aware of.
23This was a brazen, sophisticated and well-thought out criminal endeavour, targeted for maximum financial return. This crime occurred at the beginning of the workday, presumably when the presence of customers would be unlikely. A prop was used, in this case an unloaded handgun. Efforts were made to disconnect CCTV cameras.
24Whilst Mr Kachami engaged in the preparatory activities that I have described, and physically effected the theft upon entering the business armed, your role was nevertheless significant. You were in a position of responsibility and knowledge at the Melbourne Gold Company. You disarmed the alarm. You let Mr Kachami into the premises and led him to the rooms containing the safes and the property which was ultimately stolen. In these circumstances, your behaviour represents a gross breach of trust, given your position within the business and the obvious degree to which you facilitated this crime.
25
Through your counsel, and indeed it seems in comments to others, you have asserted that the genesis or idea for this criminal endeavour came from
Mr Kachami, and that you acceded to his proposal due to your own personal circumstances and financial pressures at the time. In my view, there is no evidentiary basis upon which I could make such a finding. In my view, your culpability for the offending overall must be seen as at least equal to that of
Mr Kachami. Indeed, that your offending involved a gross breach of trust distinguishes you from Mr Kachami and accentuates, in my view, both the gravity of your conduct and your level of culpability for it.
26In my view, your conduct in relation to the theft charge can be properly categorised as a high level example of the crime of theft.
Personal Circumstances
27You are now 38 years old. For the past 20 years you have been in a relationship with your partner, Danielle, whom you met whilst still at secondary school. Together you have three sons aged between seven and 16.
28Your parents separated when you were a baby, with you remaining in your mother’s care and your father, an Aboriginal man of the Warumungu clan from Tennant Creek in the Northern Territory, maintaining regular contact with you. Your father was apparently an active member of the local Aboriginal community in Melbourne, working as a drug and alcohol counsellor at the Galiamble Men’s Recovery Centre in St Kilda, and also founding the Aboriginal Catholic Ministry in Thornbury.
29
According to your mother, Elizabeth, in her letter to the court dated
30 January 2021 (Exhibit D), through your father, you had contact with various Aboriginal associations and groups and met some members of your extended family. According to your mother, your father was well-intentioned but prioritised his work first. According to your mother, as you grew older, visits with your father became fewer and your mother struggled to facilitate you keeping up some connection with your Aboriginality. Nevertheless, between the ages of four and 11 you apparently felt accepted and involved in your Aboriginal heritage.
30Your father died when you were 11 years of age from cancer. Unsurprisingly, you apparently found this loss very difficult. You continued to have some contact with your extended Aboriginal family, although much less frequently. This contact diminished over time, causing you to lose a vital part of your heritage.
31When you were aged 18, you apparently visited your father’s traditional Aboriginal burial site in Broadmeadows, where you left a note with your details, asking your Aboriginal relatives to contact you. You subsequently met and developed a relationship with some of your half-siblings over the ensuing years. However, you ultimately distanced yourself from your relatives due to their drug and alcohol issues and you wanting to avoid the risk that you would also become enmeshed in such activities.
32According to your mother, the ensuing lack of contact with your Aboriginal roots has created a 'big hole' in your psyche. You instead focused on other pursuits, such as various sporting activities and, as I have mentioned, your longstanding relationship with your partner, Danielle. You had your first child in 2004, and your direct family life has become your main priority.
33Nevertheless, you have instructed that between 2004 and 2010 you entirely lost contact with your Aboriginal family members, and the loss of those connections to your father, family and customs, has significantly played on your mind in the past decade. You have apparently longed for reconnection with your heritage, particularly as you wish to connect your children with their Aboriginal heritage and cultural values.
34You previously worked in the construction industry until about 2018, but were unable to continue in this industry due to a back injury. In 2019, you commenced working at the location of your offending, through your connection with Mr Kukulka, a man whom you had known as a friend for many years.
35For the purposes of your plea hearing, you were assessed by Clinical Neuropsychologist, Matthew Staios, who authored two psychological assessment reports dated 16 November 2020 (Exhibit C) and 12 February 2021 (Exhibit G). According to Mr Staios, in recent years you have experienced significant financial strain and have lived beyond your means, which has resulted in you having to take out private loans from friends, in order to make ends meet. In addition to rental on the family home in Donvale, you were paying significant private school fees in relation to your children.
36Approximately 18 months ago, you invested a significant amount of money in a property development which was due to enter the sale phase in early 2020. However, due to the complications associated with the COVID-19 pandemic in 2020, you have yet to receive any financial compensation from your investment.
37You reported to Mr Staios essentially living from pay cheque to pay cheque prior to your offending, and that you were barely keeping up with supporting your family as the sole breadwinner. In the context of this stress, you reported a significant increase in your alcohol use as a means of coping and escapism. You reported to Mr Staios a significant decline in your mental state in the lead-up to your offending, in the context of COVID-19 and the cascading impact on your finances, including your job security, as you had apparently encountered a pay cut of approximately 20 per cent. As the pandemic evolved, you reported that you had been informed by your employer that your position and job prospects were uncertain. You also reported to Mr Staios your perception that your work environment was then toxic, a matter which you referred to during the sentencing conversation with the Aboriginal elders at your plea hearing on 1 February 2021.
38According to Mr Staios, you likely had an adjustment disorder, primarily characterised by depressive symptomatology and excessive alcohol use as a means of coping and escapism. These issues were likely compounded in the context of ongoing financial stress amidst the pandemic. According to Mr Staios, it would appear that a combination of these issues, in conjunction with alcohol use, resulted in you displaying limited consequential thinking at a time when your mental state was compromised.
39In his addendum report dated 12 February 2021, Mr Staios articulated his opinion in relation to your early childhood maladjustment and instability – particularly the rejection and abandonment in the context of your inconsistent relationship with your father, the impact of very limited contact with your extended indigenous family, and your ongoing psychological vulnerabilities in connection with the offending.
40In the view of Mr Staios, 'living beyond his means is likely a reflection of overcompensating as a result of his unstable relationship with his father.'.[2]
[2]Mr Matthew Staios, Addendum Psychological Assessment Report (12 February 2021), paragraph 4.3
41The consequences for you and your family of your offending have been very significant. You have been in custody since your arrest on 12 May 2020. You were the sole breadwinner for your family. As a result of your incarceration, your partner and children have moved into her father’s two bedroom house. Your father in law is being treated for cancer. There are now five people living in this two bedroom house, including your sons, who are attempting to engage in education.
42Your partner now lives off government benefits. Your savings and all assets are now gone. Your partner suffers from psoriatic arthritis and fibromyalgia, which makes her extremely tired and in chronic pain, particularly exacerbated by stress.
43In your letter to the court tendered at your plea hearing (Exhibit B), you clearly articulate the devastating impact upon your family. In particular, your youngest son now suffers from anxiety with concerning physical manifestations.
44I accept that as a result of your offending, you have suffered shame, embarrassment and anxiety, particularly in relation to the impacts on your family. You have been remanded in custody in the context of the COVID-19 pandemic, and I accept that your time in custody has been more burdensome as a result of the restrictions attendant upon the pandemic in a prison setting.
45Upon your arrest in May 2020, like all prisoners, you were prohibited from face to face contact with your family. Access to employment and therapeutic activities, at least on a face to face basis, has been substantially impaired. Save for a recent relaxation of visits, due to the volatile situation regarding COVID-19, you are now faced with an inability to have physical contact with your family. I accept that this has no doubt caused added anxiety to you, and that these significant consequences have highlighted the gravity of your predicament.
Sentencing Factors
46In formulating an appropriate sentence in your case, the Sentencing Act 1991 requires me to have regard to various factors. I have already referred to the relevant maximum penalties, the nature and gravity of your offending and the impact on your victims. I have also referred to your previous character. At the age of 38 you fall to be sentenced as a man with no prior convictions or findings of guilt.
47In assessing your previous character, I have had regard to your absence of any prior criminal history, the matters contained in the psychological reports to which I have referred, your letter to the court, the letter of your mother, Elizabeth, and the letter written by your partner, Danielle, on 12 February 2021 (Exhibit H).
48Clearly, you are a man who is loved by your family. You have maintained a longstanding intimate relationship through which you have fathered three sons. Until your offending, you were gainfully employed and supporting your young family. Given these matters, and your absence of any prior criminal history, I am satisfied that your offending is out of character for you.
49I have already referred to your level of culpability for your offending which, in my view, is high. Your counsel did not submit that your moral culpability was lessened due to any mental impairment, in accordance with the Verdins’[3] Principles.
[3] R v Verdins (2007) 16 VR 269
50As I earlier stated, in my view, the fact that you offended from your position of trust, which you breached, is a significant factor accentuating your culpability for the offending. As I previously stated, I am unable to accept your claim that you became involved essentially at the behest of your co-offender. As I have indicated, my assessment of your culpability incorporates an acceptance that both you and Mr Kachami were significantly involved in the offending as willing and, it seems, eager participants.
51Whilst I accept that your personal history and alienation from your Aboriginal heritage may go some way to explaining your psychological make-up and fragilities at the time of the offending, that in no way excuses your conduct. It can, in my view, provide context in relation to your tendency to perhaps overcompensate and live beyond your means. As I stated in your most recent hearing, in my view your Aboriginality however does not warrant any reduction in your moral culpability pursuant to the Bugmy[4] principles.
[4] Bugmy v R [2013] 249 CLR 571
52I accept that your offending was likely driven, in no small part, by the financial pressures operating on you at the time. However, given the nature, sophistication and gravity of your offending and, in particular, the extraordinarily high value of the property seized, this in no way excuses your offending behaviour.
53Given the absence of any accoutrements of wealth in the immediate aftermath of your offending, it is difficult to ascribe your motivation as pure greed rather than need, as the prosecution submits. However, it seems that your clear motivation for the offending was that you simply resorted to serious criminal offending to ameliorate financial pressures. Your moral culpability therefore for these crimes is high.
54In formulating an appropriate sentence in your case, I have considered your plea of guilty and the stage in proceedings at which this matter resolved. Having been arrested on 12 May 2020 and then making a 'no comment' interview, I accept that in mid-July 2020 you first made a plea offer in the context of other charges which are no longer proceeding against you.
55
At a committal mention on 14 October 2020, you proceeded by way of the straight hand-up brief procedure with a plea of guilty. I was informed, and accept, that your plea negotiations occurred upon receipt of the brief of evidence against you, where the full extent of inculpatory material would have been known to you. Nevertheless, your early plea of guilty in the circumstances I have described, warrants a significant sentencing discount for utilitarian reasons. Through your plea of guilty, a committal hearing and criminal trial has been avoided. This has saved the community time and expense and, importantly, your victims have been spared the trauma of cross-examination. Particularly in the context of the
COVID-19 pandemic and the extraordinary delays associated with the administration of criminal justice in this State, a significant discount due to your early plea of guilty is warranted.
56I turn now to the issue of remorse. I accept that your early plea of guilty, in the circumstances as I have described them, is capable of providing a basis for a further sentencing allowance on the basis of your remorse. In your letter to the court (Exhibit B), you clearly apologise for your actions and take full responsibility for your part in the offending. You also articulate an understanding that you are fully accountable for your offending, and your actions were completely unjustifiable.
57According to Neuropsychologist, Mr Staios, you expressed remorse for your actions and the impact that your offending had on your employer and anyone else involved.[5] Further, on the issue of remorse, you participated in a Koori Court sentencing conversation on 1 February 2021, with two Aboriginal elders or respected persons. Overall, I formed the view that you participated conscientiously in that confronting sentencing conversation. In my view, you participated meaningfully. Whilst initially reserved, I observed you to eventually become expansive in relation to your offending. You were, in my view, remorseful during that conversation and, importantly, by agreeing to participate in the sentencing conversation, you exposed yourself to the shaming process that is integral to such a proceeding.
[5]Mr Matthew Staios, Psychological Assessment Report (16 November 2020), paragraph 8.4
58As the authorities make clear, participation in the process of the Koori Court is more burdensome than appearing at a traditional plea hearing. Rather than hiding behind counsel, you were prepared to be accountable for your offending behaviour directly. In this way, participation in this process may itself be rehabilitative.[6]
[6]DPP v Heyfron [2019] VSCA 130 at [67] and [68]
59However, both in your letter to the court, and it seems in your conversations with Neuropsychologist, Mr Staios, you clearly attribute the genesis of the offending to your co-offender.[7] Furthermore, both in your conversations with Mr Staios[8] and in your sentiments expressed during the sentencing conversation, your disparaging remarks in relation to a toxic work environment with attendant bullying and racial comments, clouds, to some degree, your level of insight in relation to your offending and your views with regard to your victim, Mr Kukulka. In my view, these sentiments temper somewhat any mitigatory allowance on the basis of remorse.
[7]Mr Matthew Staios, Psychological Assessment Report (16 November 2020), paragraph 8.3
[8]Mr Matthew Staios, Psychological Assessment Report (16 November 2020), paragraph 3.5
60As I have already stated, I accept that your time in custody to date and, indeed, into the future, has been made more arduous due to the impacts of the COVID-19 pandemic on the custodial setting, particularly given your inability to have face to face visits with your family. A mitigatory allowance is therefore warranted due to the hardship of any custodial sentence, and the added anxiety caused to you in that regard.
61I have also had regard to current sentencing practices as one of the factors to be taken into account in formulating an appropriate sentence in your case. Whilst neither the prosecution nor the defence referred me to any cases said to be of factual relevance, I have generally considered this issue. Clearly, in relation to this type of offending involving very considerable amounts stolen, significant sentences of imprisonment are warranted.
Sentencing Principles
62In light of your lack of criminal history, the catastrophic consequences to date for you due to your offending, and your plea of guilty and remorse, I accept that the sentencing principle of specific deterrence should be sensibly moderated, as should the principle of community protection. Given the nature and gravity of your offending, the sentencing principles of general deterrence and denunciation remain significant, in my view.
63In sentencing you, it is also important to have regard to the need to facilitate your rehabilitation. Given your absence of prior criminality and the other mitigatory factors to which I have referred, I am satisfied that your prospects of rehabilitation remain good. In particular, I regard your willingness to participate in the Koori Court sentencing conversation to be a positive factor in relation to your prospects of rehabilitation. I also regard your stated desire to re-engage in a prosocial manner with your Aboriginal heritage[9] to be a positive indicator in terms of your prospects of rehabilitation.
[9]Mr Matthew Staios, Addendum Psychological Assessment Report (12 February 2021), paragraphs 4.4 and 4.5
64In my view, given the distinct nature of the offending captured by both charges on the indictment, there is a need for a degree of cumulation between the offences, subject to the overriding principle of totality and proportionality.
65Finally, I turn to the issue of parity. In formulating an appropriate sentence in your case, I have had regard to the principle of parity – equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes.[10]
[10]Piacentino v The Queen [2019] VSCA 153 at [43]
66Both you and Mr Kachami have an absence of any prior criminal history. In relation to both of you, your moral culpability is high. Whilst Mr Kachami may have had a more direct physical involvement in the commission of the crimes, your involvement was significant due to your awareness of, and connection to, the victim’s business. In particular, in contrast to Mr Kachami, your offending must be seen as a gross breach of trust, given your position within the business. This, in my view, is a significant distinguishing factor between you and Mr Kachami.
67Mr Ede, your offending on the morning of 27 April 2020, represents an egregious breach of trust. Together with Mr Kachami, you executed an audacious plan to stage an armed robbery, with you the hapless victim, in order to steal what can only be described as a bounty of breathtaking proportions. As the manager with intimate knowledge of the riches that were then located at the business, and the security mechanisms that would need to be disabled in order to affect this theft, your role was crucial. Your victim has suffered immensely. Your conduct must be denounced and a message must be sent to the broader community that such serious conduct will result in a significant penalty.
68In my view being mindful of the parsimony principle, nothing short of a substantial custodial sentence appropriately ameliorated by a period of parole eligibility to facilitate your rehabilitation back into the community is appropriate. Mr Ede I now come to the portion of my remarks where I indicate the sentences to be imposed.
Sentence to be Imposed
69In relation to Charge 1 on the indictment, aggravated burglary, you are convicted and sentenced to 3 years and 6 months’ imprisonment.
70On Charge 2 of theft, you are convicted and sentenced to 4 years and 9 months’ imprisonment. This is the base sentence.
71I direct that 12 months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2, making a total effective sentence of 5 years and 9 months’ imprisonment. I direct that you serve a minimum period of 3 years and 9 months’ imprisonment before becoming eligible for parole.
72Pursuant to s.18 of the Sentencing Act 1991, I declare a period of 290 days, not including today, be reckoned as time already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
73Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have imposed a total effective sentence of 7 years and 6 months' imprisonment with a non-parole period of 5 years and 3 months'.
74Dr Alexander the restitution order application that has been made, is that not opposed or opposed by your client?
75DR ALEXANDER: It's not opposed, Your Honour.
76HIS HONOUR: Finally, I will make the restitution order sought by the prosecution in the amount of $333,420 in favour of the Melbourne Gold Company, this application not being opposed by you.
77Yes, thank you. Mr Cordy, any ambiguities, or anything I've missed in relation to the sentence? Sorry Mr Cordy, if you can unmute please?
78MR CORDY: I beg your pardon, Your Honour, I've just unmuted my mic. No there are no ambiguities or questionable matters that I can see Your Honour. Thank you.
79HIS HONOUR: Yes, thanks. Dr Alexander anything from you?
80DR ALEXANDER: No, thank you very much Your Honour if it please the court.
81HIS HONOUR: Thank you Mr Swindon, if you could adjourn the court sine die please.- - -
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