R v Van Leeuwen

[2007] NSWDC 63

CITATION:	R v VAN LEEUWEN [2007] NSWDC 63
HEARING DATE(S):	6 - 7 December 2006 11 December 2006 13 - 16 February 2007 13 April 2007
JUDGMENT DATE:	20 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to imprisonment.; See Paragraphs [159] - [164]
CATCHWORDS:	Criminal Law - Sentence - Steal From Employer - Theft Of A Large Number Of Items From The Australian Museum - Harm Caused By Offence
LEGISLATION CITED:	R v Thomson & Houlton [2000] 49 NSWLR 383. Pearce v The Queen (1998) 194 CLR 610
PARTIES:	Crown Hendrikus Gerardus Cornelius Van Leeuwen
FILE NUMBER(S):	05/11/1035; 05/11/0519; 05/11/0520
COUNSEL:	P Calvert (Crown) C Steirn SC, F Coyne (Offender)
SOLICITORS:	NSW DPP Chris Peacock & Co Lawyers

SENTENCE

Introduction

1 The offender appears for sentence today on 15 counts of stealing from his employer, the Australian Museum. He asks also that I take into account a total of 179 other offences on 5 Forms 1 attached to various counts on the indictment. The maximum penalty for each offence on the indictment is imprisonment for 10 years.

Facts

2 The Australian Museum is Australia’s first and oldest natural history museum, having been established in 1827. As well as having a cultural significance, the collections of the museum are important to natural history research and projects undertaken by staff, students and scientists from external agencies.

3 Many people would have visited the Australian Museum and seen the exhibits there in the various galleries. However the work of the Australian Museum extends far beyond displaying exhibits to members of the public. The vast majority of the items held and owned by the museum are not for the purposes of display to the public, but are instead for the purpose of scientific study.

4 The offender started working for the Australian Museum in October 1996. Initially he was working as a pest controller. This work necessarily gave him access to all parts of the Museum. He took advantage of that by stealing the great bulk of the items for which he is to be now sentenced. Later he was transferred to a different position within the Museum as a moulder and caster. This reduced his access to parts of the Museum and so his rate of theft also reduced.

5 The offender started stealing from his employer within months of starting work. Museum management first noticed thefts of various specimens in late 1997, however they did not report the matter to the police until late 1998. A police investigation did not commence at that time for reasons that are not clear.

6 Later Dr Tim Flannery made the Museum Trust aware of the thefts. The Museum Trust reported the matter to the ICAC on 3 October, 2002. ICAC began investigations which culminated in the offender’s arrest and the recovery of the things he stole.

7 On 11 March, 2003, the day before the offender’s premises were searched, he was observed by ICAC officers to move a large number of specimens stolen from the Australian Museum, from his house, to his daughter’s house. He later admitted that this was “to hide them” .

8 On 12, 13 and 17 March, 2003, a number of Search warrants were executed on various premises by ICAC, including the premises of the offender. Later, police officers took possession of further items from the home of the offender.

9 The offender took part in two recorded interviews with ICAC officers on 12 March and 8 May, 2003. The offender admitted that he had stolen a large number of specimens from the Australian Museum during his employment with the Museum. The offender also admitted that, on occasions, he even used an official Museum vehicle to transport the stolen specimens to his home.

10 He was fired in March 2003, soon after his arrest.

The Major Issue in Dispute

11 A great proportion of the evidence called in this matter related to the question of the extent of the damage occasioned by the offender’s wrong-doing. The Crown made its position clear from the outset, namely that the damage caused was substantial. Mr Steirn SC on behalf of the offender made his position clear too from very early on. There was a real dispute concerning the extent to which the offender had caused loss or damage.

12 The Crown said that there were a number of ways in which the offender’s thefts had caused damage. They included:

• Damage to the items themselves such as the physical damage to the thylacine skull the subject of count two, which included the separation of the teeth from the skull.

• The cost of dealing with pest infestation of the exhibits after they were recovered from the offender’s possession.

• Damage to the individual specimens because of improper storage methods while they were in the offender’s possession.

• The cost of identifying the provenance of each item recovered so that it could be matched with information concerning where and in what circumstances it was taken from its natural environment.

• The loss of information resulting from both damage to the items recovered and also the inability to identify particular exhibits with particular catalogue numbers.
• Damage to the reputation of the Australian Museum.

13 With the possible exception of the final category, all of these heads of damage were contested by the offender. But for reasons I will explain, I am satisfied beyond reasonable doubt that the offender has caused not merely substantial harm, but enormous, incalculable harm through his criminal activities. Through his selfish actions he has cost the Australian Museum not only a great deal of money, but damaged its reputation, and perhaps most importantly of all, caused permanent harm to the ability of scientists to study many aspects of the natural history of Australia and the rest of the world. In some cases that harm will be permanent. As I was reminded when hearing the evidence, many of the exhibits are unique and irreplaceable. To take the obvious example, there will never be another thylacine skull to replace the one damaged by the offender.

14 I will discuss each of the aspects of such damage in turn, but before I do so I will turn to an assessment of the credit of the various witnesses, including the offender.

Credit

15 There were a large number of matters in dispute in the present case. They concerned various issues, but one issue remained of relevance to all disputed issues of fact, namely the credit worthiness of the witnesses, including the offender himself.

16 In no area at all was it shown that witnesses called by the prosecution had exaggerated their evidence or lied. The Crown relied in particular on the evidence of three scientists employed by the Museum: Dr Walter Boles, the collection manager of birds: Mr Ross Sadlier, the collection manager in herpetology; and Dr Sandra Ingelby, the collection manager in mammals. It was obvious that the scientists felt ill disposed towards the offender, but that is hardly surprising given the circumstances. Nevertheless such feelings might lead a witness to exaggerate matters or say things which are untrue and so I listened carefully to the evidence to establish whether the attitude of the prosecution witnesses towards the offender could have damaged their credibility. I could identify no area where it was even suggested to them that they had lied.

17 To the contrary is the evidence given by the offender. When a witness comes before the Court, and is shown to have lied, that can damage the credibility of everything else the witness says. This is the case when I consider the offender’s evidence. I am satisfied that he lied to me and so I must look at the rest of his evidence with that in mind.

18 So obvious were some of the offender’s lies in court that his counsel was forced to concede that he had lied, suggesting that his client could not bring himself to admit the truth.

19 One of the areas where he most clearly lied concerned his evidence as to the circumstances in which he took the Long Beak Echidna skull, a matter on the Form 1 attached to Count 1. During the offender’s evidence he was shown a copy of a document (exhibit RR). The document was a copy of a notice which was posted around the Museum in an effort to discover the whereabouts of some Long Beaked Echidna skulls which had gone missing. The offender admitted that he had seen the notice around the Museum, but despite that fact, when he came across the one of the missing skulls about a year later, his evidence was that he simply stole it. He didn’t tell anyone in authority that he had found one of the skulls. His attitude was that he had been treated spitefully by someone in the Museum and so when he found the skull he took it.

20 Exhibit RR describes the missing skulls and goes on to explain their rarity and importance. When it was suggested to the offender in cross examination that he therefore knew of the skull’s rarity and scientific significance before he stole it, he gave evidence that he only read the heading and not the rest of the notice.

21 This is simply incapable of belief. At the time the notice headed “Missing Skulls” was posted around the museum, the offender was a man who had been stealing skulls, and other items, for some time. It is inconceivable that he would not have read the entirety of that notice rather than simply its heading.

22 I am satisfied beyond reasonable doubt that the offender saw the notice, (he admitted that) and that he read it all (something he denied). That conclusion is important for two reasons in particular. First, as far as the offender’s motivation is concerned it means, even accepting him as to the circumstances in which he took the skull, that he was not taking it to look after it but taking it simply because he wanted it. A person who genuinely wanted to look after such a scientifically valuable and much needed specimen would have taken it to the person who most wanted it. And secondly it means that he lied to me when giving his evidence.

23 There are sufficient examples of the offender clearly lying whilst on oath, one of which I have already mentioned and some of which I will later refer to, that I have significant reservations about accepting his evidence on matters in dispute.

Bias – Dr Ingelby

24 It was constant refrain in Mr Steirn’s submissions to me that I should find that Dr Ingleby was biased against the offender. It is undoubtedly the case that Dr Ingleby is not well disposed to the offender. Given his admitted criminality she, as a scientist who has for many years worked in the study of mammals at the Australian Museum, would have felt the loss and damage occasioned by the offender’s criminal acts deeply. She has had to invest many hours of her time dealing with the consequences of the offender’s crimes. She no doubt would prefer to be doing other work to advance the state of knowledge of mammals rather than spending weeks of her time attempting to minimise the damage the offender has caused. She also recognises that some of the damage can never be undone.

25 These ill feelings towards the offender appear to have pre-dated his arrest. The evidence is that she was suspicious of the offender well before his arrest. It would not be surprising therefore if Dr Ingelbey wanted to see the offender punished for what he has done.

26 In those circumstances I have to be careful before I accept Dr Ingleby’s evidence. I have therefore examined her evidence with great care, especially where it conflicts with the evidence of the offender.

27 I prefer Dr Ingleby’s evidence, to the extent of being satisfied beyond reasonable doubt concerning it, even where it does conflict with the evidence of the offender. Dr Ingleby’s evidence was consistent, both internally and with other evidence called by the Crown; she made appropriate concessions, conceding that she was not an expert in areas where she was not an expert; and, unlike the offender, was not found to be lying despite extensive cross-examination by Mr Steirn.

Antipathy displayed by museum staff

28 The offender gave evidence that he experienced jealousy and antipathy from more highly qualified members of the Museum staff. He said that he felt ostracised and although he contributed money for the purchase of birthday cakes for staff, no one ever collected money for a cake for him. The offender should not have been surprised by this. He was under suspicion for a long period of time. Many believed him to be responsible for the high rate at which specimens were going missing. Scientists who had devoted a great part of their professional lives to the study of specimens such as those they believed the offender was stealing were unlikely to be terribly keen to buy the offender a birthday cake.

29 Mr Whittaker was a volunteer at the museum who was called to give evidence on behalf of the offender. He observed that some of the professional staff at the Museum did not treat the offender terribly well. Mr Whittaker of course did not know that by the time he made this observation the offender had been stealing many items from the Australian Museum over a lengthy period of time, with suspicion attaching to the offender himself. It would not be surprising if, in those circumstances, some people were not well disposed towards the offender.

30 Thus there is evidence of antipathy being displayed by some museum staff towards the offender for some time. As I have explained such feelings may be justified in the circumstances, but they are relevant to my assessment of the reliability of evidence of museum staff who gave evidence before me. As with Dr Ingelby, it would not be surprising if museum staff wanted to see the offender punished for what he has done.

31 I have therefore examined the evidence of those witnesses employed by the museum with particular care, but once again I could identify no area of their evidence which was unreliable. If it was to be suggested that they had lied I would have expected that to be put to them clearly. But what happened in this case is that contradictions between their evidence and the evidence of the offender became apparent only in the offender’s evidence.

32 The witnesses from the museum gave their evidence in a way which impressed me. They all seemed to me to be anxious to be accurate, even to the extent of Dr Boles returning to court one day to correct a relatively minor matter in his earlier evidence. Their evidence was, as with that of Dr Ingelby, internally consistent, consistent with other evidence, and contained nothing which was difficult to accept or incapable of belief.

33 The same can not be said of the offender’s evidence as I have explained, and will explain, elsewhere in these remarks.

Damage

34 Having discussed the credit of some of the important witnesses I will return to the question of damage occasioned by the offender’s thefts.

Damage By Removal Of Numbers

35 Each specimen held by the Museum has a registered number. The registered number of each item in the Museum’s collection is now collected in an electronic database. This database has records going back to the middle of the 19th Century. Initially the registered numbers were recorded in large leather bound binders before being transferred into the electronic database in more modern times.

36 The registered numbers are identified with particular specimens in various ways, depending on the nature of the specimen. Sometimes the number is actually written on the specimen, sometimes a numbered tag is attached to the specimen, and on other occasions the specimen is kept in a box or other container with the number written on the container.

37 The scientists called by the Crown gave evidence that when an item is disassociated from its registered number, the scientific value of that specimen is greatly diminished, not only as a research animal but also as an archival animal. As Dr Boles explained specimens are not examined only once and then forgotten. It is important that where some research on particular specimens is published, later scientists who wish to examine that research can go back to the identical specimen.

38 When an item is acquired by the Museum the provenance of the item is recorded. This includes information such as the location from which the item was taken, when it was taken, and the habitat in which the animal lived. A particular specimen is linked with information regarding its provenance through the registered number. The scientific value of an item is greatly diminished where its provenance is not known. I will illustrate this proposition later in these remarks by referring to the situation which now faces the Australian Museum as far as its study of Marsupial Moles is concerned, but for the present it is important to simply note that where an item has become disassociated from its number the scientific value of that item is greatly diminished because important information regarding the item is lost.

39 Amongst other issues, Dr Flannery’s evidence explained the importance of an item being associated with its registered number. His evidence was put before me by tender of his statements. He was not required for cross-examination, so I can accept what he said without reservation. This is what he said in exhibit L.

“To my knowledge, the thefts from the Australian Museum represent the largest theft of Museum holdings ever perpetrated in Australia. The thefts have dealt an irreparable blow to the scientific utility of the Museum’s collections, particularly as some of the specimens have had identifying marks removed or have been separated from accompanying records. This has resulted in the true provenance of many of the recovered specimens being erased and the integrity of the scientific research conducted with these specimens had been compromised.

Natural history collections are apparatuses that are used by scientists to understand the natural world. All research dealing with classification is entirely dependent upon them. Such studies reveal the full biodiversity of our planet, and are fundamental to all other work in natural science, including conservation, physiology, earth history and some medical research, to name just a few. It is the collection in its entirety, as much as individual items, that is central to this work. This is because every specimen represents a discrete datum point, and it is by accumulating and interpreting these datum points over decades and centuries that pictures of animal and plant distributions, declines and spreads, as well as their evolution, can be tracked. To lose specimens from collections such as the Australian Museum’s, or to break the link between a specimen and the data associated with it (for example by erasing registration numbers) compromises the work of hundreds of researchers conducted over centuries, as well as degrading the investment of many millions of dollars made by individuals and the state in accumulating collections”.

40 The Crown case is that the offender caused many of the items he stole to become disassociated with their numbers in various ways. He was said to have removed tags, to have taken items from their containers and to have removed numbers that were written on the items themselves.

41 When some of the items were seized by ICAC from the offender’s possession it was discovered that the identifying number had been removed by physical means, that is it had been scratched off. The offender denied that he was the person who had done that but it was the Crown case that he had. There was no suggestion that the numbers had been removed when they were in the possession of the Australian Museum, nor would there be any reason for anyone connected with the Museum to have done so. When I asked Mr Steirn during the course of submissions if he could identify anyone apart from his client who would have a motive for removing a number, he conceded that he could think of no-one. In further submissions he conceded that his client must have been responsible for the physical removal of those numbers. I find beyond reasonable doubt therefore that numbers were removed by the offender. This finding has multiple relevance.

42 Firstly it effects the offender’s credibility. He said that he had not removed the numbers but I am satisfied beyond reasonable doubt that he had. I find that the offender lied to me when giving his sworn evidence.

43 Secondly it makes it clear that the offender was responsible for the loss of value occasioned by the physical damage to the items and for any associated costs with the repatriation or re-association of the specimen with its associated number.

44 Thirdly it also affects my assessment of the offender’s evidence that he was such an avid, even fanatical, collector of specimens that he would not knowingly damage them. In view of my finding that the offender deliberately damaged the items by physically removing numbers on occasions I cannot accept that he is the sort of person who would never knowingly damage a specimen.

45 As it turns out most of the items the subject of the charges on the indictment, or which relate to the matters on the form 1, were able to be re-associated with the registration number assigned to the item by the Australian Museum. This is not surprising because it was that ability to identify a particular item as having come from the Australian Museum’s collection which enabled the prosecution to identify an item found in the offender’s possession as being one stolen from the Museum and thus could be either the subject of a charge or a matter taken into account.

46 Sometimes this was a matter of good fortune, where particular measurements taken earlier when the item was studied when it was in the possession of the Australian Museum enabled that item to be recognised. Thus its unique identifying number could be re-associated with the particular specimen.

47 Sometimes re-association was a matter of painstaking work done by the Australian Museum.

48 And on occasions, particularly with the bird specimens, the link could be made because the offender had attached to some exhibits his own unique identifying number and kept a record of the original Australian Museum number which could be cross referenced after the items were recovered.

Cost of Repatriating Items With Numbers

49 As part of the damage caused by the offender’s actions, the Crown relies on the time spent by Museum staff as they attempted to reassociate items recovered from the offender with the Museum’s registered number.

50 Dr Boles gave evidence about the time that he had spent on identifying specimens seized from the offender. Dr Boles, who was concerned only with the bird specimens, said that he had spent from 2 - 4 days a week for over a month and a half on that exercise, thus far only looking at skins of specimens and that he had not even started on eggs or skeletons. It will be recalled that Dr Boles had the advantage of the record kept by the offender which enabled cross referencing between the number he gave to the bird skins with the museum’s number.

51 Dr Ingleby gave evidence that she and other scientists spent 3 months going through the material recovered from the offender, spending 3 or 4 days a week and 6 or 7 hours a day on that task. Even now, she has not finished her work in attempting to re-associate mammal specimens with their registered numbers.

Some Exhibits Have Been Re-Identified With Their Numbers

52 I will give some examples where re-association has been possible. The Rhinoceros Horn Bill skull (which is matter number 18 on the Form 1 relating to count 7) was re-associated with its number because it was a distinctive specimen. It was recovered in the same condition it was when it was stolen by the offender, therefore the scientific value of that item has not been diminished. That is of course not to say that the theft of the item did not cause any damage. Clearly the time taken to identify the item and re-associate it with its registered number represented a loss to the Australian Museum in that the scientist who did this work, Dr Boles, was unable to do other work for which he was employed by the Museum. There are many other examples where the Museum employees have had to spend their time reassociating specimens with numbers.

53 On other occasions re-attribution was possible because of the uniqueness of the exhibit. For example the Bulmer’s Fruit Bat the subject of Count 13 and the Thylacine the subject of count 2 on the indictment.

54 However that does not mean that there had been no loss of scientific value in relation to many of the items recovered. For example the reattribution of unique number to a particular item has not always been done with 100% certainty and for many items there remains some doubt. And on other occasions a large number of similar items were recovered and it has not been possible to ascribe particular unique numbers to particular items. The loss of scientific value caused by this circumstance is illustrated by the position with the Marsupial Mole.

The Marsupial Moles

55 As I said earlier, when studying specimens taken from the wild, it is crucial to be able to identify when, where, and in what circumstances items in the collection were taken from their natural environment. Dr Ingleby gave an example relating to Marsupial Moles which illustrated the importance of being able to identify the provenance of items which come into the museum’s collection. (The theft of one of the marsupial moles is count 5 on the indictment)

56 Her evidence was:

Q. Take the marsupial moles. You’ve got five that you’ve spoken about in your statement. Is there a difficulty in identifying which mole is which mole…?

A. Yes that’s right. At this point we’re unable and I doubt in future whether we’ll be able to reassign those registration numbers to the moles for the reason that they were spirit specimens, you can’t write a number on them like you can a bone so you can’t use forensics to get it back. They had a tag on them or usually two tags, one on each leg. That number’s been cut off and we have absolutely no way, there were no measurements of those specimens that were ever made. They’re one of the most difficult mammals to obtain in Australia because they burrow and there’s very little known about them. They’re a highly interesting species because at present - we used to think there was just one species in Australia but now molecular research has shown that there could be two or three different species. But we have no way of assigning those numbers back to them and the specimens came from different parts of Australia. Some came from South Australia, some came from Northern Territory and they were also collected often decades apart and we have no way, at this point, of ever matching them back.

57 So, as far as the Museum’s collection of marsupial moles in concerned, further study in an effort to identify whether there are different species living in different parts of Australia is impossible because there is no way of knowing where any particular marsupial mole came from.

The Problems of Re-Association

58 Exhibit MM sets out the position regarding the inability to conclusively identify 32 mammal specimens. I have already explained why it is important for a scientist to be able to identify a physical specimen as having been collected from a particular location at a particular time. Mr Steirn accepted the accuracy of the Crown’s submissions on this aspect. Thus it can be immediately seen that the damage as a result of the inability to specifically identify recovered specimens is significant indeed.

59 That damage is both monetary, for example there is a considerable cost of identifying particular exhibits through scientific analysis including perhaps DNA analysis, and also non-monetary through the diminution of the scientific value of an exhibit because anyone studying it cannot be certain of its provenance.

The Offender’s Responsibility for Dissociation of the Numbers

60 When Dr Boles, Dr Ingleby and Mr Sadlier gave evidence they were cross-examined, but not once was it put to them that before the items were taken by the offender their numbers had been disassociated from them. Yet when the offender gave evidence that is exactly what he said. (I should mention here that his is not the only example where a suggestion was made by the offender in his evidence but that suggestion had not been put to witnesses for their comment). The cross-examination of the 3 scientists was rather focused on suggestions that the Museum should have measured or photographed items to aid repatriation of the registered number.

61 I do not accept as a reasonable possibility the offender’s belated suggestion that the numbers were already disassociated from items when he stole them. Many of the items stolen were of extraordinary scientific interest and it is frankly inconceivable that they would have been treated in such a way whilst at the Museum that their numbers were disassociated. There was no scientific reason for that to happen, and, especially in the case of the more important items, unlikely in the extreme that it would have occurred though negligence.

62 On the other hand the offender, it must be remembered, had a most powerful motive to remove numbers from items he had stolen because those numbers could be used to trace the items back to the Australian Museum. That would explain why, as far as the birds are concerned, the offender removed the Australian Museum’s identification and replaced it with his own.

63 The offender gave evidence that he would only take a numbered tag off a skin when he replaced it with a different number. When asked why he would do this the offender said that the original Australian Museum numbers were long and he preferred that the items have a shorter number. This explanation, I am satisfied, is fanciful and dishonest. The museum’s registered numbers were only a few digits longer than the numbers used by the offender.

64 Count 7 relates to a Ganges River Dolphin. When taken from the Museum both the skull and skeleton were together but when found by ICAC the skeleton was at the offender’s premises whilst the skull was in Newcastle. The offender explained that he gave the skeleton to his friend Richard Kolomy because it had an Australian Museum number on the box in which it was contained. He said didn’t want that box at his home because he was concerned that police were closing in on him. This is clear evidence of the offender’s concern that the registered number could be used to incriminate him and of his consequent desire to remove Australian Museum numbers from exhibits.

65 In circumstances where the only person who had any reason to disassociate an item from its number was the offender and where the people at the Australian Museum had every reason to keep an item with its number, I am satisfied beyond reasonable doubt that the person responsible for the disassociation of numbers from exhibits was the offender.

66 In some circumstances I am satisfied that the offender physically scratched the number off, or at least attempted to. In other cases I am satisfied that he removed tags. In other cases he took items from a container which had the number on it and finally the offender has attempted to remove numbers through bleaching.

67 Let me give some examples of items where the number has been scraped off it, thus physically damaging the item as well as disassociating the item from its registered number.

68 When giving evidence, the offender was shown a photograph of a skull of a Bridled Nailtail Wallaby. (The theft of this item appears on the Form 1 attached to Count 2 on the indictment.) It was apparent that someone had scraped off the number previously appearing on the skull. In the course of submissions Mr Steirn virtually conceded that it must have been his client who scraped the number off that item, there being no other reasonable explanation as to how the number came to be removed. The offender was given the opportunity of identifying a reason that anyone apart from him would scratch the number off - the only explanation he could come up with made no sense at all.

69 Exhibit TT was a photograph of a Huon Tree Kangaroo skull. It also had its number scraped off. (The Huon Tree Kangaroo appears on the Form 1 attached to the first count on the indictment) The offender also denied scraping that number off, but I am satisfied that he did.

70 Similarly exhibit UU is a photograph of the Goodfellows Tree Kangaroo (the subject of Count 4 on the indictment). It also had its identifying number removed although there are areas on the bones which show where the number previously appeared.

Whether the Australian Museum Should Have Recorded Identifying Data

71 In his evidence the offender blamed the Australian Museum for being unable to repatriate some items with registered numbers. He seemed to suggest that the Australian Museum should have measured, photographed, and otherwise recorded identifying information of items either at the time they were received, or subsequently. The offender’s case is that had the Museum done this then the disassociation of items with their registered number would have been of little consequence. Thus he says that the fact that some items cannot be reassociated with their number is not his fault but the Museum’s.

72 The un-stated suggestion behind that evidence is that the offender should get a lesser sentence because he is not wholly responsible for that aspect of the damage related to the disassociation of numbers from items.

73 I reject that completely. It is akin to saying that someone who breaks into a person’s home and steals valuable jewellery should get a lesser sentence where the householder has not put bars across the windows, on the basis that the householder is partly responsible for his or her loss.

Offer to Assist the Repatriation

74 In the course of his evidence, the offender said that he was prepared to assist officers from the Australian Museum in their efforts to repatriate items with their numbers. There was no evidence to establish whether he could be of any substantial assistance. In any case I cannot imagine that any sensible officer of the Australian Museum would feel comfortable letting the offender any where near the items which he once stole. His offer of assistance, even if it were capable of being genuine assistance, was fanciful.

Physical Damage

Damage Caused During Recovery Process

75 A significant amount of time was devoted to evidence concerning the issue of whether items recovered from the offender’s possession were damaged in that process of recovery. The offender says that he saw ICAC officers overloading cardboard boxes which contained Australian Museum items they had seized from his and his daughter’s premises. Even assuming that this is the case (and I make no finding that it is) it has to be said that the offender cannot escape responsibility for such damage simply by saying he did not directly cause it.

76 Of course it was foreseeable that in the course of recovering stolen items from him, one or more of them might be damaged. The need for ICAC officers to raid his premises and seize the things the offender stole; the need for them to return items to the Australian Museum; and the need for them to be used in his prosecution, were all eminently foreseeable.

77 This was not a case either where the offender stole only one or two items. Instead he stole a huge number of them which was always going to make recovery of them by police officers, untrained in the handling of natural history specimens, something of a problem. But the circumstance (if it be one) that the offender did not directly cause damage is not really of any great interest where the plain fact remains that were it not for the offender’s stealing the items, thus necessitating their recovery, the items would not have been damaged.

The Thylacine Skull (Count 2)

78 I am now going to spend some time discussing what I consider the most serious count on the indictment, Count 2.

79 When the thylacine skull was recovered its teeth had come away from the skull. The offender, to his credit, was able to identify the teeth associated with the skull and later experts were able to replace some, but not all, of the teeth in the skull. Quite clearly the thylacine skull is an important scientific item and if it were damaged as a result of the offender’s actions it would be a substantial matter of aggravation.

80 Exhibited before me was a photograph of the skull taken in the 1960’s or 1970’s showing the teeth intact. (The photograph is part of exhibit E). Dr Ingleby gave evidence that she catalogued the Australian Museum thylacine skulls, including the one the subject of count 2 on 2nd June 1997 and the teeth were intact when she did so. However something has occurred between that date and the date it was recovered by ICAC from the offender’s premises to cause the teeth to come away from the skull. This is unlikely to have occurred merely through the passage of time - Dr Ingleby’s evidence was that the teeth would have to be wrenched out to effect their removal. If that were done deliberately then that would be an act of gross vandalism, and whatever could be said about the offender, it was never suggested that he would deliberately damage an item in that way.

81 The offender’s evidence was that when he took the skull from the Museum the teeth were in a brown paper bag. It is his case that the skull must have been subject to rougher than usual handling by someone in the Museum before it was stolen by him. On the other hand the Crown case is that the only explanation for the teeth coming away from the skull is that after it was stolen by the offender, a cast was made of it, and in the process of that occurring, the teeth were accidentally removed, perhaps when they became stuck to casting material.

82 Relevant to this dispute is evidence that the offender was also in possession of a cast of the skull, that cast showing the teeth in place. The offender claimed that he got it indirectly from a vet at Bankstown although a witness called by the Crown, Mr Stanioch, gave evidence that the offender told him that the cast was one that the Australian Museum no longer required.

83 There was also evidence also was that it was impossible to distinguish between a cast made from the original skull and a cast taken from a cast.

84 A further matter to note is that Dr Ingleby refused to allow the skull to be cast by the offender when she was approached by him requesting access to the thylacine skulls in the possession of the Australian Museum so that he could copy them. She also refused a request by another man, Peter Ampt, who asked for her permission to have thylacine skulls cast when Dr Ingleby learnt that it was the offender who was to make the casts.

85 This evidence is relevant for 2 purposes. Firstly it shows that the cast in evidence before me was unlikely to have been made between 1997 and when it was stolen by the offender. And secondly it is relevant because it established an interest on the part of the offender in casting the skull, making it more likely that once he had come into possession of the skull through his illegal activities, he would do that which he could not do when the skull was in the possession of the Australian Museum: namely take a cast of it.

86 Finally on this issue I should refer to evidence suggesting that the offender was skilled at making moulds and casts of skulls and bones. This tends to suggest that, if the teeth were removed in the process of copying a skull then it was unlikely that the offender was the person performing the exercise.

87 I have considered very carefully what could have happened to the skull to cause the teeth to be removed from it. As I have already said it would be an act of vandalism to do this deliberately. However I consider it entirely possible that during the process of casting the skull the teeth could have been accidentally removed. Some casting material could have stuck to the teeth when the mould was taken and when that mould was removed it is entirely possible that the teeth would have come out with the moulding material. If that were the case then a cast taken from the mould would show the teeth intact.

88 The matter has not been easy to resolve, but I am satisfied beyond reasonable doubt that the skull was damaged after it was stolen by the offender and that that damage most likely occurred in the process of it being copied. I am unable to say beyond reasonable doubt whether it was the offender or some other person who accidentally damaged the skull in the process of copying it but it does not matter as it was the offender’s criminal actions in removing the skull from a place of safety in the Museum which led to it being copied which, as I have said, led to it being damaged by the teeth being removed.

89 I summarise briefly why I have reached that conclusion. The offender expressed an interest in copying the Thylacine skull the subject of Count 2. He was denied permission to do so when the skull was in the possession of the Australian Museum. Thus it is consistent with his expressed interest that once he had stolen the skull he would take a cast of it. There is no reason that anyone would deliberately damage the skull by removing the teeth, yet there is evidence that the teeth could be removed accidentally during the process of casting it. I am satisfied beyond reasonable doubt therefore that the only explanation for the teeth being removed from the skull is that someone accidentally caused the teeth to be removed while casting the skull, this occurring after the offender had stolen it.

90 The result is that Count 2 is particularly serious. The offender has irreparably damaged an irreplaceable item of great scientific interest. Of less importance is the fact that the Museum staff had to spend time identifying the item as being one which belonged to the Museum. Money was spent in attempting to re-insert the lost teeth. But these damages are much less serious than the unquantifiable but nevertheless substantial harm caused to the study of Australia’s natural history through the skull being damaged.

Damage to Items Whilst in the Offender’s Possession

91 A number of items appear to have been damaged by improper storage methods used by the offender. For example Dr Boles spoke of skin specimens that were packed excessively tight so that their shape changed and items that were kept in poor quality and insufficient ethanol which led to the items macerating.

Bleach

92 Many of the items were said by the Crown to have been bleached whilst they were in the possession of the offender, such bleaching leading to the item becoming more fragile and decreasing its longevity. The Crown said items the subject of Counts 2, 4, 6, 12, and 13 had been bleached by the offender. The offender denied doing so but I am satisfied that that was a false denial.

93 There are two main reasons for accepting the Crown case that it was the offender who bleached the relevant items. The first is the absence of any reason why anyone involved in scientific research would bleach the item. The evidence established that those who wished to study an exhibit for scientific purposes had no reason to bleach any bones and indeed there was a positive disincentive for so doing – that being that bleaching causes damage. On the other hand the offender didn’t want to study the items he stole, he simply wanted to have them, and in some cases display them. It might be thought that an item cleaned by bleaching would make a more attractive display than an unbleached item. So this is yet another case where the only person who has an incentive to do something which has damaged the items is the offender himself.

94 The second and more important reason why I conclude that the offender is the one who bleached the items which were bleached concerns the Salt Water Crocodile skull the subject of Count 12 on the indictment. When this item was in the Museum’s possession it was associated with the rest of the skeleton, but the offender only stole the skull. Upon recovery from the offender’s premises it is clear that the skull has been bleached because it is now a lighter colour than the rest of the skeleton which remained in the possession of the Australian Museum. The only explanation for this is that the skull has been bleached. This suggests that despite the offender’s denials of having ever bleached any item he stole from the Museum he has clearly done so.

95 Of course in making this assessment I have had to bear in mind, as with all other aspects where the Crown says the offence is aggravated, that the Crown bears the burden of proving the circumstance of aggravation beyond reasonable doubt. But I have also to bear in mind in my findings about the general credibility of the offender which is, I repeat, that I can place very little weight upon anything he said on oath to me where it is contradicted by other evidence.

Teeth Missing

96 Apart from the thylacine skull, a number of the items recovered from the offender were missing their teeth. The offender says that that was the condition they were in when they were stolen. The Crown says the teeth must have been removed, either deliberately or accidentally, while the items were in the offender’s possession. As far as the indictment is concerned the items the subject of Counts 2, 4, 6,7, and 8 did not have teeth with them when they were recovered by ICAC (although as I have already mentioned the teeth for the Thylacine the subject of Count 2 were found elsewhere in the offender’s premises after he pointed them out to ICAC officers).

97 For reasons which appear above I am satisfied the offender is responsible for the removal of the teeth from the Thylacine skull, probably during the process of casting that skull. But I am not satisfied beyond reasonable doubt that he is responsible for the teeth being removed from other items. Clearly those studying the items would not remove the teeth or want them removed but equally those displaying the items, such as the offender, have no motive to remove the teeth either.

98 Further there is no evidence that any of the items apart from Count 2 were cast while they were in the possession of the offender. There is thus no evidence that the teeth could have been accidentally removed during the process of casting. So in this case I am not prepared to find in the Crown’s favour that the offender was responsible for the removal of teeth from items apart from the Thylacine skull but nor am I prepared to find in the offender’s favour that he did not remove the teeth. It is a matter which is neutral.

The Damage Caused by Pest Infestation

99 As far as the items on the indictment are concerned there was only one specimen which was the subject of pest infestation. That was the Clouded Leopard the subject of Count 8. That infestation was treated and I gather that there was no damage to the item.

100 There was a dispute as to whether the infestation of that item and others the subjects of the various Forms 1 came about when the items were at the offender’s premises, or alternatively after they had been returned and placed in the Museum’s premises.

101 I do not find it necessary to resolve this issue. I am satisfied that it is not necessary to do so given the extent of the damage occasioned to the items in other ways. It would not make any difference to the result whether the offender was responsible for the pest infestation or whether the Museum was. I note in passing however the evidence suggesting that the offender was unlikely to have been responsible for the pest infestation because he was himself a pest controller was damaged somewhat by evidence from a witness, Victor Chiang, who was called by the offender himself, when he said that the offender was not a very good pest controller.

The Offender’s Knowledge of the Scientific Value of the Items he Took

102 It was a common theme in the offender’s evidence that although he now realises the scientific value of many of the items he stole, he did not realise this at the time. Again this is a matter which I reject, at least insofar as some of the items are concerned.

103 Let us firstly consider the case of the Thylacine skull. A Thylacine is more commonly known as a Tasmanian Tiger. It is notorious, and I am satisfied that the offender well knew, that such animals are believed to be extinct but they remain of an enormous scientific, and indeed public, interest.

104 The offender must have known not only that Thylacine skulls were rare but also the obvious consequence of their extinction being that no new Thylacine skulls are likely to ever be obtained. Despite this knowledge the offender simply stole a Thylacine skull (Count 2 on the indictment) caring not that he was taking away for his own selfish purposes something of enormous scientific value.

More General Damage

105 As I noted earlier the Crown relied on the Museum’s loss caused by its reputation being harmed as one of the matters demonstrating the seriousness of the offences. Relevant to that issue is the evidence of Paul Clark. His evidence was put before me by way of tender of his statement. He was not required to attend for cross-examination and so in those circumstances I can accept the accuracy of what he says:

The Australian Museum’s reputation links directly to our branding. Good brand reputation is crucial to the success of the Australian Museum’s core functioning eg:

• Attracting the general public
• Attracting education/school groups
• Securing corporate sponsorship for exhibitions and services
• Securing exhibition contracts and partnership deals with international/national institutions
• Attracting major gifts from donors
• Attracting corporate philanthropy

106 Before commencing employment at the Museum, Mr Clark attended a national, bi-annual conference of marketing and development mangers from Australian cultural institutions. His statement noted:

At this meeting the enormous implications of the thefts were widely discussed. There was consensus that the damage caused to the brand of the Australian Museum and the loss of public trust in the institution pursuant to these thefts would cause great difficulty in eliciting corporate sponsorship and major donations.

107 He stated:

In a very competitive marketplace the theft of the Australian Museum’s specimens has damaged our brand value. The additional publicity surrounding this case will further limit our ability to generate future cash and asset revenues; as well as damaging audience numbers and income generation. It will take many years to rebuild a high level of trust and confidence in the Australian Museum.

The timing of this case impacts on our capital campaign for our revitalisation and master plan building program. The damage to our brand is immeasurable and the flow on effects will be felt for many years.

108 I accept this evidence, and will take it into account when assessing the harm caused by the offender’s crimes.

Conclusion regarding Harm

109 It will be obvious from what I have said so far that I am satisfied beyond reasonable doubt that the harm which has resulted from the offender’s many crimes is enormous. The harm can be categorised in various ways: He is responsible for damaging individual items; he is responsible for damage to the Museum’s reputation; he is responsible for the loss of scientific value of many items particularly through the disassociation of that item with its registered number; he is responsible for Museum staff having to spend a great deal of time attempting, not always successfully, to reassociate items with their numbers.

110 In many offences of stealing from an employer it is easy to quantify the damage because the loss is primarily monetary. But in this case monetary loss is but one aspect of the harm for which the offender is responsible. That is why I have had to take some time explaining my conclusions regarding the damage caused.

111 The harm caused by an offender is a matter clearly relevant to assessing the objective criminality of an offence. In this case, I repeat, the harm for which the offender is responsible is enormous such that, at least as far as some counts on the indictment are concerned, the objective criminality is either in, or in other cases close to, the worst category of offences of this type.

The Failure to Return Some of the Offender’s Items

112 Mr Steirn submitted during the course of the evidence that the Australian Museum staff were retaining material which they knew to be the offender’s in order to mitigate their loss. In other words the suggestion is that the Australian Museum realise the damage that the offender has caused and wish to make good some of that damage by retaining some of the offender’s own specimens.

113 There was not one single item of evidence to justify that quite extraordinary submission. The evidence was all one way – that is the decision not to return some items to the offender, apart from the gorilla which has been returned, was that of ICAC. The material is held at the Australian Museum, but is in the possession of and under the control of ICAC, no doubt for valid reasons connected with the prosecution of the offender.

Subjective Circumstances

114 The offender was born in the Netherlands in 1956 coming to Australia as a very young boy. He did some schooling in Australia but returned to Holland 6 years later. Whilst back in that country he developed an interest in collecting specimens of birds and other animals. He began to collect bird skulls which he cleaned, as well as road kill.

115 By the age of 14 or 15 he had developed an extensive collection which he brought with him when his family moved back to Australia. He was only in Australia briefly this time before going back to Holland where his interest in collecting specimens developed even further.

116 He obtained specimens through doing voluntary work with various organisations for which he was paid in dead animals which he would then clean. He also bought some items and continued to collect road kill. Whilst in Holland he learnt taxidermy being largely self-taught. He obtained his qualification as an electrician in Holland and commenced work with Rentokill.

117 He married in 1977 and had 2 children in Holland before once again moving to Australia in 1981. He brought with him his now very extensive collection. He was employed by Rentokill Australia but when he was not working he spent a great deal of time pursuing his interest.

118 He was the manager of Rentokill in Wollongong and it was well known that he had a collection of specimens. From time to time he would be asked by charities to display those specimens. He did so on occasions. Material was tendered which showed the publicity that such displays had generated and it was clear that the charities had benefited from the offender’s endeavours.

119 The offender suggested, and there was no evidence to the contrary, that with one exception he had never displayed any of the material he stole from the Australian Museum. The offender explained that the reason he only displayed his material was because the Australian Museum material wasn’t his to display. The obvious comment on that answer is that it is a shame the offender’s acknowledgment of the lack of his right to display the items didn’t also prevent him from stealing them in the first place. The one qualification to the offender’s unwillingness to display stolen items was that on one occasion he was photographed with a stuffed lion which he had stolen from the Museum.

120 By the time the offender had reached a stage where he was stealing items from his employer his collecting had become an obsession which he said took over his life. It almost led to the break up of his marriage when his wife got fed up with his obsession and went back to Holland until he persuaded her to come back.

The Offender’s Circumstances Since Arrest

121 The offender was dismissed from his position at the Australian Museum at the time his premises were raided by ICAC He has found it difficult to get work since then and now does deliveries for a local Chinese take-away restaurant on Friday, Saturday and Sunday nights. He also helps out a friend doing audio-video installations and pest control.

Good Character

122 The offender has no previous convictions and thus was a man of good character before he commenced his criminal activities by stealing the first of the items that he took from the Australian Museum.

The Offender’s Motivation

123 Clearly, what motivated the offender to steal 194 items from the museum over many years is important in assessing the appropriate sentence to impose on him.

124 The offender is a compulsive collector of natural history specimens whether they be skulls, skeletons, skins or mounts. Over the years he had amassed a significant collection and was proud of it. But the primary purpose of his collection was not scientific study. The offender seemed to me to want to possess specimens simply for the sake of possessing them.

125 The offender claimed that he stole items from his employer to protect them but that is evidence which I just do not accept. I am satisfied that the offender stole these items simply because he wanted to have them. He enjoyed, indeed as I have said he was obsessed with the idea of, collecting specimens and accumulating specimens gave him great pleasure and satisfaction. When he was placed in a position where he could easily steal items to add to his collection he took advantage of his position – as I have said simply because he wanted to have the items which he stole.

126 I reject the assertion repeatedly made, that the sole motivation of the offender was to look after the exhibits. That may (I emphasise may) explain some thefts but in at least a significant number of cases he took things simply because he wanted to have them. His attempts to pretend to me and to others including Dr Roberts (a psychiatrist called on behalf of the offender) that he was motivated solely by a desire to preserve specimens is, I am satisfied beyond reasonable doubt, false. It represents an attempt by the offender to minimise his moral culpability, but falsely so.

127 The offender was cross-examined about why he taken the Marsupial Moles in particular. The offender stole a number of them (one is on the indictment and the others are on a Form1) and the Crown asked him why he stolen so many. The offender said he just took the drum in which the Marsupial Moles were contained because he wanted to take care of them. However it seems, apart from removing the tags, the offender did nothing to the Marsupial Moles. When he was asked by the Crown “but how are you looking after them any better than the Museum if you take them home and you don’t look at them, you don’t do anything with them”, the offender replied, “I can’t answer that, I honestly can’t”

128 I reject completely any suggestion that the offender ever intended to return a single item that he stole. Not only is that suggestion contrary to his admissions of guilt but the very fact that he never returned any shows that he never intended to. The fact that the offender continued to steal from the Australian Museum over a lengthy period of time also suggests that the offender was intending to keep the items.

129 In the offender’s favour, I am not satisfied that the offender committed these offences for commercial or financial gain.

Were Any of the Items Abandoned?

130 Part of the justification advanced by the offender for stealing many of the items was that he believed that they had been abandoned by the Australian Museum, or otherwise treated in such a way that the Museum did not deserve to have them.

131 On the final day of the hearing of this matter, after the evidence was closed, the Crown took me to various aspects of the evidence of Dr Boles, Dr Ingleby and Mr Sadlier. It is important to note that it was never put to any of those witnesses in cross-examination by Mr Steirn that any of the items stolen by his client had been abandoned by the Museum (that is, apart from a suggestion made to Dr Boles about some items being thrown out with the garbage – a proposition he denied). Thus at no stage were the witnesses given any opportunity to respond to the suggestion, later made by the offender, that the Museum was treating the items in such a way as to give the appearance that it did not want them. For that reason there is no categoric assertion by the witnesses to contradict the offender’s assertion.

132 Nevertheless the tables attached to the statements of the three collection managers from the Museum (on which they were not cross examined) establish that the items were not left at locations randomly distributed throughout the Museum but were in appropriate and known places, whether that be a place at the Australian Museum premises in College Street such as the main collection room or the Spirit House, or at the Marrickville off site storage unit.

133 To give a specific example, the Clouded Leopard the subject of Count 8 on the indictment was seen in the Museum by Museum staff only a week before it was stolen by the offender. It was clearly not abandoned by the museum as the offender suggested.

134 The offender claimed that he took things so that he could look after them, but it is apparent from the state of the items when they were found by ICAC when they executed various search warrants that the offender was doing no such thing. Separating a skull from a skeleton as the offender did in both Count 7 and Count 12 is hardly looking after an item.

135 The offender must have also realised the importance the Museum placed on the Bulmer’s Fruit Bat the subject of Count 13 after notices were put up around the Museum seeking information as to its whereabouts. If he really did intend to look after items then his failure to return that item, perhaps surreptitiously, (even assuming in the offender’s favour that he stole it before the notices went up) demonstrates the offender’s attitude towards the items he stole. It was not so that he could look after them. It was so he could have them.

136 Further, if they were abandoned, or treated by the Museum in the way the offender said they were, it is unlikely the their loss would have been noticed, but the evidence was that thefts were noticed in late 1997.

Delay

137 I accept that in this case there has been substantial delay not attributable, in at least a significant way, to the offender. The offender’s premises were searched on the 12th of March 2003 and within 2 months he had co-operated with the authorities fully by taking part in 2 electronically recorded interviews. He made substantial admissions during those interviews. True it is that he denied some matters, a position which was maintained in correspondence between his solicitors and the Crown, but I accept that the offender was always willing to plead guilty to those matters for which he is now to be sentenced.

138 The offender indicated that he would not be pleading guilty to some matters and, in a letter from his solicitor, explained why he had taken that position. Subsequently the Crown has decided not to proceed with those matters. I must assume that the offender is not guilty of those matters and so the consequence is that the offender is not to be held responsible for delay occasioned by his denial of matters of which he was not guilty.

139 This is a case where the Crown has taken a long time to marshal its case against the offender. That may well have been an inevitable consequence of the complexity of this matter but it has resulted in delay. The offender has had this matter hanging over his head for more than 4 years. The sentence I will impose upon him will be affected by the fact that there has been this lengthy delay.

140 The offender has also suffered a loss because of the delay, and the efforts made by his lawyers, justifiably as it turns out, to persuade the DPP not to proceed with certain matters. He has had of course to pay his lawyers for the work that they have done and I accept that he has extensive legal bills as a result of the need for his lawyers to correspond with the DPP, to appear in Court on many occasions when the matters were adjourned and to discuss the DPP’s responses with the offender himself. I will take into account when sentencing the offender that he has suffered a loss through having to pay expensive legal bills.

Rehabilitation

141 This case clearly has many unusual aspects to it. One of them concerns the fact the offender is highly unlikely to ever commit any offence in the future. Apart from his overwhelming desire to have for himself natural history specimens and him satisfying that desire by theft the offender has been for all of his life a man of otherwise good character.

142 The chances that anyone in the future will let him near natural history specimens which are not his own is highly unlikely. The evidence was that one of the reasons the offender has not been able to obtain employment, apart from delivering Chinese take-away for a local restaurant, is because when he applies for a job his prospective employers use the internet and his criminal past is readily discovered. So I find in the offender’s favour that he has good prospects of rehabilitation, primarily because he will have little opportunity in the future to steal other items of natural history.

Remorse

143 Pleas of guilty are often said to be capable of being treated as evidence of remorse and contrition but that is not a universal rule. Where the case against an offender is strong and where despite a plea of guilty the offender refuses to admit the extent of his wrongdoing – both circumstances which are of application in the present case – the extent to which pleas of guilty may be treated as evidence of remorse and contrition is limited indeed.

144 On the question of remorse - certainly he is sad because of the effect that his detection as a serious criminal, and the need that he be sentenced to imprisonment, will have upon his family. The offender is remorseful in that sense, but I am not satisfied that he is remorseful in the sense that he is sorry for having committed the crimes. Certainly he is sorry he was caught but that is not the same thing.

145 There is no doubt that the offender is deeply sorry for the effect that his offences have had on his family, but I could see little if any acceptance by the offender that what he was doing was wrong.

146 It is noteworthy that on neither the Crown case nor the offender’s case did the offences stop because he had an attack of conscience. The Crown and the offender agree that the rate of offending merely slowed when he was unable to gain access to the parts of the Museum he had previously had access to in his job as a pest controller.

The Assistance to the Authorities.

147 The offender gave evidence for the Crown in a Local Court prosecution. Despite some prevarication on his part during the course of giving evidence it is to be noted that the accused in that hearing was convicted. The assistance, and the potential consequences for the offender, are to be rewarded by appropriate discount. However I will not quantify that discount separately from the discount for the plea of guilty.

The plea of guilty

148 The offender indicated early on his willingness to plead to a large number of offences. He refused to plead to some matters and a great part of the delay has involved some to-ing and fro-ing between the Crown and the offender’s lawyers as to the charges to which pleas of guilty would be entered. The parties even tendered correspondence between themselves as to the protracted negotiations which led to pleas of guilty being entered in this Court. It is apparent that the Crown has not proceeded with any of the matters which the offender denied during those negotiations.

149 In those circumstances I will take the pleas of guilty as having been entered at an early opportunity. That would usually result in the maximum discount being given to the offender for the utilitarian benefit of his pleas. But these sentencing proceedings were protracted, requiring the calling of evidence over a number of days and that evidence went almost exclusively to an issue which has been resolved in favour of the Crown, namely the extent of the damage caused by the offender’s misconduct. Although I accept that had the matter gone to trial it would have been a terribly complex and lengthy proceedings nevertheless the utilitarian discount I will allow for the plea of guilty is not at the high end of the range found in R v Thomson & Houlton [2000] 49 NSWLR 383.

150 As I mentioned, the assistance to the authorities consists of the offender giving evidence for the Crown in a case which led to convictions before a magistrate. The offender’s evidence seems to have been fairly significant and the magistrate accepted him, with reservations, as a witness of truth. In those circumstances I will allow a reasonable discount for the assistance as well. Combining the discounts for assistance and pleading guilty I will impose a sentence which is 30% less than it would have been in the absence of those factors.

Objective Criminality

151 The extent of the offender’s wrongdoing can be seen in a number of ways:

• The first concerns the number of items stolen. Adding together the counts on the indictment and those on the 5 Forms 1 reveals that the offender took a total of 194 items which did not belong to him.

• The second way of assessing the offender’s criminality is to consider the monetary value of the items he took, although it has to be remembered that the items were recovered. The value placed on the items by the Crown was $873,250 (although that appears to cover 199 items so it must include 5 items which are not the subject of any charge).

• Then there is the length of time over which these offences occurred. It is common ground that the offender stole these things over a period of years.

152 These measures of the offender’s criminality are standard ways in which an offence of this type is assessed but this case is far from a standard case of theft from an employer because of the enormous damage which the offender has done despite the fact that the items were recovered.

Breach of Trust

153 The offender has pleaded guilty to 15 counts of stealing from his employer. A breach of trust is not a specific element of this offence although in the vast majority of such offences a breach of trust will necessarily be involved. I have to be careful therefore not to double count when I take into account that there was a breach of trust in the present case.

154 The breach of trust here was significant. The offender says that he stole most of the items with which I am concerned whilst he was employed as a pest controller at the museum. His job was therefore to protect the collection so that it would be available to scientists and others who wish to study items in it, and remain available for posterity. Instead of protecting the collection so that others could use it, the offender stole from it for selfish purposes so that others were denied access to the things he stole. Even when he was employed as a caster and moulder his employer trusted him to look after items in the collection but again the offender preferred his own selfish interests over the interests of others.

Suspended Sentence Not Available

155 Mr Steirn submitted that a full time custodial sentence was not required and that a suspended sentence would be an appropriate outcome in the circumstances. As I have decided to impose a period of imprisonment of more than 2 years I need say nothing more about the possibility of suspension.

Special Circumstances

156 This is the offender’s first time in custody which can be a special circumstance resulting in a shorter non-parole period than that which the statutory ratio would suggest. I will make a modest reduction in the non-parole period to reflect this circumstance. The reduction is modest, as I have said, because the effective non-parole period which I will shortly announce is, I consider, the least period which properly reflects the objective gravity of the offender’s most serious conduct.

The Individual Counts On The Indictment

157 Not all of the counts on the indictment are of equal seriousness. For example in some counts the items were returned undamaged and the specimen could be repatriated with its registered number. In other cases there was substantial damage, either physical such as the Thylacine skull the subject of Count 2 or due to the disassociation of the number, such as the Marsupial Mole the subject of Count 5. Some counts on the indictment have Form 1 matters attached to them but others don’t. Some items were very rare, such as the Bulmer’s Fruit Bat the subject of Count 13 and the Thylacine skull, but others were relatively common. Some items had historical significance such as the Ganges River Dolphin, the subject of Count 7 and the Adelie Penguin the subject of Count 9.

158 The High Court in Pearce v The Queen (1998) 194 CLR 610 required that individual sentences be set for individual offences and so sentences for the offences on the indictment will not be identical to reflect the various circumstances to which I have made reference.

159 I have divided the offences into 4 categories reflecting my assessment of the appropriate sentence for each offence.

Sentences

160 The sentences I impose are as follows, taking into account form 1 matters when appropriate.

161 On Counts 3, 8,11,14 and 15, the offender is sentenced to imprisonment for a fixed term of 2 years to commence today, 20th April 2007.

162 On Counts 1, 4, 6,7,9,10,and 12, the offender is sentenced to imprisonment for a fixed term of 3 years to commence 1 year from today, on the 20th of April 2008. Those sentences are fixed terms because of the sentences I will impose on the remaining counts.

163 On Counts 5 and 13 the offender is sentenced to imprisonment. I set a non-parole period of 3 years to commence on the 20th of April 2009 with the balance of the term being one year.

164 On Count 2, the offender is sentenced to imprisonment. I set a non-parole period of 3 years to commence on the 20th of April 2009 and a balance of term of 2 years.

165 Thus the overall sentence is one of imprisonment for 7 years with a non-parole period of 5 years. The offender is eligible to be released to parole on the 19th of April 2012.

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