Director of Public Prosecutions v Elgin

[2014] VCC 1887

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01336
CR 14-01337

DIRECTOR OF PUBLIC PROSECUTIONS

v

DONALD ELGIN
JASON ELGIN

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2014
DATE OF SENTENCE:	7 November 2014
CASE MAY BE CITED AS:	DPP v ELGIN
MEDIUM NEUTRAL CITATION:	[2014] VCC 1887

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Young	Office of Public Prosecutions
For Accused D Elgin	Mr S. Pica
For Accused J Elgin	Mr L Gwynn

HIS HONOUR:

1Donald James Elgin and Jason William Elgin, both of you have pleaded guilty to the same offence of theft on the indictment which took place between 12 March 2008 and 12 January 2011.  The offence is an offence pursuant to the Commonwealth Criminal Code.   It carries a maximum term of imprisonment of ten years and a maximum fine well in excess of $7500, which I have already flagged I intend to impose upon each of you.

2The only prior conviction that is recorded against either of you is set out in the further presentment against James Elgin.   That is for an offence that took place in 2003 involving driving with middle range concentration of alcohol above the prescribed limit, you were discharged on a bond to be of good behaviour for 12 months.  I do not regard it as being of any relevance to sentencing in this particular case.

3The offending occurred over a period of two years and ten months.  It is described in detail in the plea summary which is Exhibit A.   That was read to the court on the plea hearing.  I am not going to repeat what is in it.  It is incorporated into these reasons for sentence in its entirety.  In summary, it sets out how each of you were involved together in a process of destroying forfeited goods on behalf of the Australian Customs Service.   The process was conducted at your business premises in Coburg under the noses of Customs officers who had the duty to supervise the destruction process. 

4You were able to circumvent that supervision process to divert some of the items that you were being paid to destroy in a way that enabled you to keep the items.   You did so over a significant period of time.  The number of items diverted amounted to something in the order of 10,000.  The estimated retail value of those items exceeds $500,000.   So the scale of the deception that you were performing upon Customs in diverting these items was significant, to say the least.  The type of items diverted varied considerably, it included alcohol, a total of 329 bottles.    The other items included some pharmaceuticals, electrical equipment and a number of prohibited weapons such as batons, knives, sling-shots, a total of 257 Tasers, there were a number of DVDs containing pornography.  There were a large number of cigarettes I mention those also specifically because those were other items, along with alcohol that were consumed.  You, Donald, were the smoker, and you, Jason, were the drinker of the two.  Although I have no doubt cigarettes and alcohol were shared with other members of the family and perhaps friends.

5There were a number of other items.   I do not think I need to go into detail about them.  Most of the items, other than those that I have specifically mentioned as being consumed in the main were found littered about the large factory premises in which you conducted the business and, indeed, lived at that time.  The factory premises were described as being in a somewhat chaotic state.  The business that you conducted and the process of hoarding that went on at those premises was likened to the activity of Steptoe and Son. Ohotographic evidence provided to me tends to support that contention.

6It must be noted that these are very serious breaches of the trust that was imposed upon you to conduct this business honestly.  There is a need for the court to impose sentences that have an effect of deterring others from committing offences of this kind.  It is accepted that neither of you were conducting your criminal activity for profit.  Exactly what motivated you to carry out this offending conduct is not clear but it seems that none of the material was sold.   At least there is no evidence of any sales of that material or any intention to sell the material.  Importantly, there is no evidence that you intended the prohibited weapons to be sold or distributed into the Victorian or Australia black market and certainly no evidence that anything like that occurred.  Had it been otherwise, there would have been no alternative other than to impose substantial terms of imprisonment upon you. 

7Moving to matters personal to each of you.   I think I can deal with you collectively in this regard.  The pleas put on your behalves respectively were not dissimilar, if I may say so with respect to your counsel.   They paint a picture of two persons who are hard-working, who have contributed much as community members in the Tocumwal area and, more recently, in Melbourne, Sunbury, Tullamarine area.  Who have built up a reputation for hard work and fair dealing and have each produced references which support the contention that you are each of good character otherwise, highly regarded within the community and contributors not only to the community but to your family and friends who would go out of their way to help others and certainly do not seek to do any harm to other members of the community.

8Each of you has pleaded guilty, each of you have expressed remorse, each of you have shown that you are ashamed of what you did and each of you have contributed significantly to the clearing up of this matter.  It would have been extraordinarily difficult for investigators to have been able to identify from the items that were littered about the business premises, if I can respectfully use that expression, those items that were the subject of this charge.  And it seems that you gave considerable assistance to investigators in identifying those items and helping them put the brief together that ultimately was relied upon in support of the charge that was brought against you.

9You have each offered help in other respects.   I do not need to go into detail about that.   It turned out not to be terribly helpful but nevertheless you showed a willingness to help authorities.  You have each lost considerably as a result of your activity.  Your business was destroyed and you have each had to start again.  It is very much to your credit that during the three years and more that have intervened - three and a half years nearly four years - between the authorities searching your premises in January 2011 and today, you have set about rehabilitating yourselves.   You have set about rebuilding your business and your working lives.  Not only have you suffered but your family has suffered in the intervening period and I take all that into account. 

10It is very much to your credit that both of you have picked yourselves up,  shown that you are made of stern stuff and that you are now contributing again significantly to the community.  Had it not been so, I would have been forced to the conclusion, I think, that my duty required me to impose an immediate custodial sentence.  It is very much because of the way in which you have conducted yourself in the intervening period that I can say with a fair degree of confidence that neither of you will commit any further offences involved dishonesty.   I am confident that both of you will be good citizens from here on in.

11I was told about a driving matter that you, Jason, have been involved in since.  Again, I do not take that into account.   I do not think that that detracts from the comments that I have made about the efforts you have made since.

12I am required to have regard to a number of material matters identified in the Commonwealth Crimes Act. I need to punish you adequately for your offending conduct. There are a number of other matters listed under s.16A(2) of the Crimes Act which were referred to during the course of the plea hearing and, to some extent, I have referred to those matters already.  I do not propose to go through those in any detail, I think I have adequately taken into account all that's been put on your behalf.  I am required to take into account the need to deter you from committing further offences and particularly to deter others from committing offences of this kind. 

13As I have already indicated, I regard offences involving breach of trust on the scale that you breached your trust in committing these offences, ordinarily to require terms of immediate imprisonment.  Indeed, it was submitted on behalf of the prosecution that the offending required a term of immediate imprisonment.  However, I think that the community is best served by assisting your continued rehabilitation and punishing you in other respects.  I am not entitled to impose a term of imprisonment upon you unless I am satisfied that no other punishment is appropriate.  I am satisfied that no punishment other than a term of imprisonment meets the seriousness of this criminal conduct.  However, as I have already indicated, it is within my discretion to enable your immediate release and I propose to enable your immediate release from those prison sentences.

14You should realise, of course, that during the period of the recognisance that you will be required to enter into, you do run the risk that you have to serve those terms of imprisonment if you commit any further offence punishable by imprisonment.  I am sure neither of you will but it will be hanging over your head for the period of two years that I intend to impose a release order upon you.  You will be required to consent to that and to sign those orders.  I have no doubt that you have been through that with your counsel and would be willing to do so.

15Doing the best I can to balance all of those factors, I am in a position to impose sentence upon you.  I am going to sentence you each to exactly the same and in each of your cases for the offence of theft, to which you have pleaded guilty, I sentence you to imprisonment for a period of two years and six months and I convict you.  I order your release on recognisance of $2000 to be of good behaviour for a period of two years.  That release will be immediatel.  In addition, I order that each of you pay a fine of $7500.  I will grant a stay of six months on the payment of that fine from today.

16I declare that, but for your pleas of guilty, I would have sentenced each of you to a term of imprisonment of three years and four months, and ordered that you serve a period of two years and two months of actual incarceration before becoming eligible for parole. 

17Are there any other orders that need to be made?

18MR YOUNG:  Your Honour, I take it that the commence date for the sentence is today.

19HIS HONOUR:  Yes it is.  The commencement of your sentence is today, the orders will now be drawn up and they will be explained to you by your counsel. 

20MR YOUNG:  If Your Honour will allow me a few minutes to fill in the details on the orders and they can be signed by Your Honour and the accused.

21HIS HONOUR:  Very well, how long do you think it will take you?  I might leave the Bench for a few minutes.

22MR YOUNG:  Less than five minutes, Your Honour.

23HIS HONOUR:  I will leave the Bench whilst you are doing that and you can show them to your colleagues and, if everyone is happy, then we can proceed with the finalisation of the sentences.

24MR YOUNG:  Thanks, Your Honour.

(At a later stage.)

25HIS HONOUR:  Mr Young.

26MR YOUNG:  Your Honour, the bond forms have been completed, they require Your Honour's signature and date on the first page under the order and then to be signed and dated by each accused and their signature witnessed by Your Honour's associate on the second page.

27HIS HONOUR:  Thank you.

28MR YOUNG:  Your Honour, could I just clarify the fines are not conditions of the order, they are separate orders.

29HIS HONOUR:  Separate orders.

30MR YOUNG:  Yes. 

31HIS HONOUR:  Do you wish to accompany Mr Travers to your client to ensure that they fully understand what they are signing?

32MR PICA:  Certainly, Your Honour.

33MR GWYNN:  Thank you, Your Honour.

(Bond signed and acknowledged.)

34MR YOUNG:  Your Honour, while that is being done, just for the sake of completeness, I have mentioned this - at the commencement of Your Honour's sentencing remarks, you referred to the criminal record of Mr Jason Elgin, but there was no reference to there being a criminal record in respect of Mr Donald Elgin, so just for the sake of completeness.

35HIS HONOUR:  Yes there was, but it's rather ancient if I remember rightly.

36MR YOUNG:  They were, back to 1980, Your Honour, but there were a number of matters in New South Wales which you may recall included larceny of cattle.

37HIS HONOUR:  I suddenly remembered that halfway through and I meant to come back to it but thank you, Mr Young.  I note that there is a criminal record which I think I indicated during the course, I do not regard as being relevant to the sentence.

38MR YOUNG:  Exactly, I just mention it for the sake of completeness of the transcript.

39MR PICA:  I think Your Honour might have used the term little or no consequence when describing those.

40HIS HONOUR:  Little or no consequence?

41MR PICA:  That rings a bell with me, Your Honour, certainly as regard during the course of the plea hearing.

42HIS HONOUR:  Yes, I think I did.  Very well, those orders are now completed and signed and your clients may now leave the dock.

43MR YOUNG:  Might copies of those orders be made available for the parties, Your Honour?

44HIS HONOUR:  Yes of course. 

45MR YOUNG:  Thank you.

46HIS HONOUR:  I will leave the court whilst the court is being cleared.

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