KEFALIANOS E M

STATE OF TASMANIA v ELIAS MAFFEKING KEFALIANOS  11 MARCH 2020

COMMENTS ON PASSING SENTENCE                            BLOW CJ

 Mr Kefalianos committed a series of crimes in north-western Tasmania over a period of 10 or 11 days in September 2017. He pleaded guilty to 17 charges, stood trial on another 16 charges, was found guilty by a jury on 13 of them, and was acquitted of the other three.  His crimes all related to burglaries and thefts.

The first six charges related to crimes committed at the home of a couple named Green in Rockliffs Road, West Ulverstone.  At about 6.20am on 4 September 2017 Mr Kefalianos drove onto that property.  He entered one of Mr Green’s vehicles and stole a set of keys from it.  He pleaded guilty to charges of burglary and stealing in relation to that conduct.  He also entered a large shed at that place, from which he stole numerous power tools, two fishing rods and a backpack.  He entered the Greens’ house, and stole an iPhone, two iPads, a MacBook and a wallet.  He was found guilty of burglary and stealing in relation to the shed, and of aggravated burglary and stealing in relation to the house.

 When Mr Kefalianos was about to drive away from that property, Mr Green opened his car door.  Some stolen items fell out and were therefore recovered. Those items were the MacBook, the iPhone, and one iPad.  According to a statement made by Mr Green to the police, other property to a total value of $6,870 was stolen from the house and the shed. There is no suggestion that any of that other property was recovered.

On or about 4 September Mr Kefalianos burgled a house on a rural property on Table Cape Road, outside Wynyard. The owners, Mr and Mrs Sell, were away for four days from 3 September to 7 September.  On their return, they found that someone had entered the house by smashing a glass external door and had stolen jewellery and other items from the premises.  Mr Kefalianos pleaded guilty to charges of burglary and stealing in relation to that property.  According to a list of stolen items prepared by Mrs Sell with the help of a jeweller, the stolen property was worth over $20,000.  Some of it was subsequently recovered by the police.  I do not have any information as to the value of the items that were not recovered.

 On the afternoon of 7 September Mr Kefalianos visited a friend at an address in Ridgley Highway, Highclere. While he was there, somebody entered a shed on the next door neighbour’s property and stole a laptop computer, which the police later found in a car that Mr Kefalianos had been driving.  He was charged with burglary and stealing in relation to the theft of that laptop, pleaded not guilty to both charges, and was found guilty of both charges by the jury.  The evidence left open the possibility that a companion of Mr Kefalianos had taken the stolen item, but it was open to the jury, if that were the situation, to find that was done as part of a joint criminal enterprise.

Throughout this spree of burglaries, Mr Kefalianos knew that the police were looking for him with a view to arresting him after he had failed to appear in court on unrelated charges.  To evade the police, he disguised vehicles that he was driving by putting false number plates on them and, from time to time, by spraying them in different colours. For the purpose of disguising a vehicle, he stole a number plate from a parked State Government vehicle in Devonport, and replaced it with the number plate of a car that he had been driving.  The theft was noticed on 7 September.  Mr Kefalianos pleaded guilty to a charge of stealing the number plate.

On 8 September Mr Kefalianos drove into a service station in Burnie, filled the tank of the vehicle that he was driving, filled some jerry cans with petrol, and drove off without paying.  He pleaded guilty to a charge of stealing petrol.  He stole $131.04 worth.

At some stage in the period from 8 to 11 September, Mr Kefalianos went to Batten Park in West Ulverstone where an organisation called Show Jumping Tasmania had some property in a shipping container. The container was secured with a combination padlock which Mr Kefalianos smashed.  From that container he stole some electric fence treadings, a first aid kit, and a number of inexpensive items including pens and bandaids.  He pleaded guilty to a charge of burglary and a charge of stealing the electric fence treadings and the first aid kit. Those items were not recovered.

 On the morning of 11 September Mr Kefalianos stole the front and rear number plates from a man’s utility in Devonport.  He put at least one of them on the vehicle that he was driving that day. He pleaded guilty to a charge of stealing those number plates.

On the afternoon of 12 September Mr Kefalianos travelled to the home of a couple named Evans on Alderson’s Road, Wynyard.  It was a secluded rural property at some distance from the town, on a road that did not carry any through traffic.  He travelled in a Holden Commodore that he had borrowed from a friend.  He may well have had a companion with him.  Somebody unsuccessfully attempted to enter the house at the property.  A screen door was removed, and the front sliding door of the house was attacked with a brick, but the house was not entered.

Next to the house there was a large brick shed that included a granny flat. The shed was burgled.  A chainsaw, a generator, some spray paint cans, and an assortment of tools were stolen from the shed. The shed was then destroyed by a fire that was deliberately lit. The jury found Mr Kefalianos guilty of attempted aggravated burglary in relation to the attempt to enter the house, burglary of the shed, stealing, and arson.  Dozens of stolen items were recovered by the police. Mr and Mrs Evans were insured against fire and theft. Their insurer is claiming $313,409.28 from Mr Kefalianos in respect of a claim made on the policy.  I infer that it paid out that amount.

It is quite possible that the fire was started by a companion of Mr Kefalianos, and not by him.  It was open to the jury to be satisfied beyond reasonable doubt that, if that was what happened, then Mr Kefalianos was guilty of the crime of arson by virtue of participation in an unlawful common purpose, in accordance with the s 4 of the Criminal Code.  I am not satisfied beyond reasonable doubt that he lit the fire personally.  He may have done, but I think that I should sentence him on the basis least favourable to the Crown, namely that the fire was lit by a companion, and Mr Kefalianos is criminally responsible for the crime of arson by virtue of s 4.

After leaving Alderson’s Road, Mr Kefalianos took steps to disguise the Commodore in which he was travelling.  He purchased some spray paint cans.  He then went to an address in Bass Highway, Somerset where he had once lived.  The property was unoccupied.  There was a sign advertising that it was for lease.  He and a companion entered the garage at that address, closed the roller door so that they could not be seen from the street, and started to spray black paint onto the vehicle.

Two police officers arrived.  They parked their marked police vehicle in the driveway outside the garage. The other man fled on foot. Mr Kefalianos drove the Commodore through the closed roller door, collided with the front right corner of the police car, and sped away.  He pleaded guilty to two charges of unlawfully injuring property, one relating to the roller door and the other relating to the police vehicle.  The owners of the premises are claiming $941 in respect of the damage to the roller door.  There is also a claim for $1,751.89 in respect of repairs to the police car.

The next day, 13 September, Mr Kefalianos travelled to a number of places south of Wynyard and committed a series of burglaries.  At about 10am he went, with another thief, to the home of a Mr and Mrs Damon on Deep Creek Road, Mt Hicks.  It was another rural property.  The house and a shed were entered. Various items of jewellery, jewellery boxes, a phone, clothing and personal papers were stolen from the house. A fuel container was stolen from the shed.  The two men  drove away when a neighbour arrived on the scene.  Mr Kefalianos pleaded guilty to aggravated burglary and stealing in relation to the house, and to charges of burglary and stealing in relation to the shed.  Much of the stolen property, but not all, was recovered by the police later that day.

A little later that day Mr Kefalianos was driving through the bush along Elsie Road, Henrietta, south of Yolla.  He came across a truck that had been parked by an excavator operator who was working a few hundred metres away.  He entered that truck and stole a quantity of tools, some fuel containers, some personal papers, and a variety of other items.  He pleaded guilty to charges of burglary and stealing in relation to that truck. Some of the stolen property was recovered by the police later that day, but some was not recovered.

Later that afternoon, somebody broke into a house on the Murchison Highway in Yolla, owned by a Mr and Mrs Bennett. Various items were stolen from that house, including some jewellery, an iPad, some knives, a chainsaw, and three rifles.  Mr Kefalianos was charged with four crimes in relation to that burglary, namely aggravated burglary (count 30), stealing (count 31), “stealing a firearm or firearm part” (count 32) – that charge related to the three rifles – and “possession of a firearm or firearm part by a person who is subject to a firearms prohibition order”       (count 33).  Mr Kefalianos was the subject of a firearms prohibition order made in June 2015.  The jury found him not guilty on the charge of aggravated burglary, but guilty on the stealing charge and the two firearms charges. That combination of verdicts is difficult to understand.

Later that afternoon, with police in pursuit, Mr Kefalianos drove the Commodore into the bush south of Ulverstone. He had a passenger in the car.  He drove into a quarry, and abandoned the car after getting it bogged in a stream.  He and his companion fled in opposite directions. Both were arrested.  Some, but not all, of the property stolen from the Bennetts’ property was found in the car. One of Mr Bennett’s rifles was found near the car. DNA matching that of Mr Kefalianos was found on that rifle. The rest of the property stolen from the Bennetts was not recovered.  At the trial, Mr Kefalianos gave evidence to the effect that he did not burgle the Bennetts’ house; and that his passenger and another man travelled in another car, met him at a rendezvous point on the Murchison Highway, and transferred property from the Bennetts’ place into the Commodore.  I gave the jury directions as to the bases upon which a person could be found guilty as an aider, an abettor, a participant in a joint criminal enterprise, and a participant in a joint common purpose. It seems clear that (a) the jury were not satisfied beyond reasonable doubt that Mr Kefalianos committed the burglary at the Bennetts’ house, nor that he was criminally responsible for that burglary; (b) they were satisfied beyond reasonable doubt that he had at least one of the three stolen rifles in his possession after the burglary; and (c) they were satisfied beyond reasonable doubt that he had at least some of the stolen property from the Bennetts’ house in his possession after the burglary.  I gave the jury directions to the effect that, on a stealing charge, they could find Mr Kefalianos not guilty of stealing but guilty of receiving stolen property.  I simply do not understand how they could find him guilty of stealing on counts 31 and 32 when they had found him not guilty of aggravated burglary on count 30.  I will impose a global sentence in relation to the other crimes committed by Mr Kefalianos (counts 1 to 21 and 24 to 29), but separate penalties on the charges relating to the Bennetts’ property.

Mr Kefalianos was 27 years old when he committed all these crimes, and is now 30.  He has dozens of prior convictions.  He has been committing crimes of dishonesty ever since he was 17 years old. He first went to prison in 2009. He has been sentenced to imprisonment many times since then.  He has had a drug problem since his teenage years.  He has tried to overcome that problem at times, but without success.  Some unfortunate events occurred in his life in the months leading up to these crimes.  First his mother died.  Then on 3 May 2017 he was involved in a motor vehicle accident and was hospitalised.  When he got home from hospital, he found that his partner had left him and that his home had been trashed.  However those misfortunes are of little consequence when one considers the seriousness of his crimes.

He spent about eight months in custody after being arrested at the Ulverstone quarry.  On 18 May 2018 a magistrate made a drug treatment order in relation to 55 charges to which he had pleaded guilty.  He was on bail on most of those charges, or possibly all of them, when he committed the crimes I am concerned with. On the making of the drug treatment order, he was granted bail on the September 2017 charges, and entered the Court Mandated Drug Diversion program.  However he began re-offending in September 2018, and was taken back into custody.  The drug treatment order was subsequently cancelled.  Further prison sentences were imposed.  It is common ground that I should backdate any sentence I impose, to commence on 25 September 2019.  Until then he was in custody on other matters.  Since then he has been in custody in relation to these matters alone, as far as I know.  Because he was in custody for nearly all of the two years from September 2017 to September 2019, the “totality principle” requires me to impose a more lenient sentence than I would otherwise impose.

There is not much else to take into account in Mr Kefalianos’ favour.  It is true that he pleaded guilty to most of the charges against him, but his pleas of guilty did not have a great impact on the length of his trial.  Quite a few of the people whose premises he pleaded guilty to burgling were called as witnesses by the Crown because their evidence tended to implicate him in other burglaries that were the subject of pleas of not guilty.

Mr Kefalianos has conceded that the petrol he stole on 8 September 2017 was worth $131.04, but he has not made any other concessions in relation to the quantification of the loss and damage caused by his other crimes.  The assertions made by the various victims and their insurers do however provide an indication of the order of magnitude of the harm he has done.

He may not have started the fire at the home of Mr and Mrs Evans, but it is clear that he was criminally responsible for losses suffered by them running into hundreds of thousands of dollars. It would of course have been worse if the fire had destroyed Mr and Mrs Evans’ house and their possessions in the house.  It counts for little that the impact of the fire fell on an insurance company rather than on two individuals.  Many of the homes and outbuildings from which he stole were easy targets, where his crimes were not likely not to be detected by neighbours or passers-by.  Crimes like that require substantial penalties with a view to deterring those who might want to commit them.  The only appropriate course is for me to send Mr Kefalianos to prison for a long time.  I will make an order permitting the Parole Board to grant him parole, since it is likely that he will benefit from conditional release under supervision prior to the expiry of his sentences.

Elias Maffeking Kefalianos, I convict you on counts 1 to 21, 24 to 29, and 31 to 33 on the indictment. On counts 1 to 21 and 24 to 29, I sentence you to five years six months’ imprisonment with effect from 25 September 2019. You will not be eligible for parole until you have served three years of that sentence. On counts 31 and 32, I sentence you to a cumulative term of eight months’ imprisonment and make no order as to parole.  On count 33, I sentence you to a cumulative term of one month’s imprisonment, and make no order as to parole.  For the purposes of s 92A of the Sentencing Act 1997, I specify that the total term of imprisonment that you are liable to serve for these three sentences is six years three months, of which the period before you will be eligible for parole is three years nine months.

I order that you pay compensation in the sum of $131.04 to the proprietor of the United Service Station in Mount Street, Burnie. I adjourn sine die the claims for compensation by the following:

  • Brian Joseph Green
  • Janet Angela Sell and Bernard Baily Sell
  • Jardine Lloyd Thompson
  • Wel Bin Mai and Rui Zhen Huang
  • Auto and General Services Pty Ltd
  • Jackee Evans and Neil Evans
  • Kim Maree Damon and Wayne David Damon
  • Scott William Peter Bennett and Rebecca Claire Toni Bennett
  • C P G Ltd