R v John Arthur BLAIKIE

[2007] NSWDC 311

CITATION:	R v John Arthur BLAIKIE [2007] NSWDC 311
JUDGMENT DATE:	10 August 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	See paragraphs 65 to 70
CATCHWORDS:	CRIMINAL LAW - Possession of housebreaking implements - Enter land with intent to steal - Break and enter with intent - Breaking entering and steal - "Special circumstances"
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Veen (No 2) v The Queen (1988) 164 CLR 365 R v Shankley [2003] NSWCCA 253 R v Hammoud [2000] NSWCCA 540 R v Moffitt (1990) 20 NSWLR 114 R v Ponfield [1999] NSWCCA 435 R v Harris [2007] NSWCCA 130 R v Engert (1995) 84 A Crim R 67
PARTIES:	Regina v John Arthur Blaikie
FILE NUMBER(S):	04/21/0222, 06/21/0008
COUNSEL:	Ms Cinque - Crown Mr Conomos - Offender

SENTENCE

1 HIS HONOUR: Mr Blaikie, the sentences I propose to impose on you are as follows. In relation to the offences committed in 2004 I propose to date those sentences, I have given you the benefit of a couple of days I must confess on the time spent in custody, from 1 May 2005, that takes into account, in my view, all presentence custody plus a few odd days. I propose to sentence you in relation to the first count, that is possession of housebreaking implements, to sixteen months imprisonment. That involves a ten per cent discount. In relation to the offence of enter land with intent to steal I propose to sentence you to two years eight months imprisonment. That represents a ten per cent discount. Those two sentences will be concurrent one with the other, and dated from 1 May 2005.

2 In relation to the matter to which you pleaded last year, the break and enter with intent, carrying with it a maximum penalty of ten years, taking into account the matter on the Form 1, I sentence you to three years imprisonment. That sentence will date from 1 May 2006. It will be partially, therefore, accumulative upon the other sentences.

3 In relation to the matter that you were found guilty of at trial, count one, the break, enter and steal, I propose to sentence you to four years imprisonment. That will date from 1 May 2007.

4 In relation to count two I propose to sentence you to two years imprisonment. That will date from 1 May 2007. In respect of the sentence of four years I propose to fix a non-parole period of two years and that will expire, on my calculation, on 30 April 2009.

5 Thus the effective sentence will be six years with a non-parole period of four years. That involves a finding of special circumstances by reason of the accumulation of sentences and also a recognition of a need, notwithstanding some reservations, for a slightly extended period of supervision to assist you to adjust to community living. You take a seat and I will give my reasons for--

6 OFFENDER: May I say this, your Honour, I’d rather you not give me the non-parole period because the Parole Board will not release me to parole.

7 HIS HONOUR: I can’t do anything about that, Mr Blaikie, and if that be the case well that will be a matter for the Parole Board. But I certainly will not deny you a non-parole period on the basis that you believe that you will be refused parole.

8 OFFENDER: Well they’ve said it before, your Honour, so. Am I permitted to appeal against that and ask for a straight sentence?

9 HIS HONOUR: Your rights of appeal are entirely a matter for you. I can’t give you any advice in relation to that. Just take a seat and I will give my reasons, thank you.

10 John Arthur Blaikie appears today for sentence in relation to a number of offences, some of which he has pleaded guilty to before me, two of which he was found guilty of by a jury. I propose to try and deal with the offences in chronological order if I may.

11 The first offences in time are offences committed on 28 May 2004. They were committed at Epping and the first count on the indictment involves an offence of having in his possession, without lawful excuse, implements capable of housebreaking, namely a number of screwdrivers. That offence carries a maximum penalty of seven years. The second offence is an offence, again committed at Epping, of the prisoner entering upon land, namely 20 Victoria Street, Epping with intent to commit an indictable offence, namely larceny, in a building upon that land, namely the dwelling house of Hsiu Chu Tsai. I am told by the Crown that that offence carries a maximum penalty of seven years imprisonment.

12 The second offence in time requires me to take into account, further, a matter on a Form 1. I shall do so in accordance with the approach approved by the Court of Criminal Appeal in the guideline judgment in relation to Form 1 matters, particularly the observations of the learned Chief Justice in that judgment. This offence, committed on 27 April 2005 at Pennant Hills in the State of New South Wales, was one of breaking and entering a dwelling house at Pennant Hills with intent to commit a serious indictable offence therein, namely larceny. That offence was one which carries a maximum penalty of ten years imprisonment. The offence on the Form 1, of receiving stolen property, was committed at Cherrybrook on the same date and it involved the prisoner being in possession of a quantity of Indonesian currency and jewellery, the property of a person by the name of Kristie Hanias, the prisoner knowing that the property was stolen. Ordinarily the offence of receiving stolen property carries a maximum penalty of ten years imprisonment. Of course matters on a Form 1, as the Chief Justice explained in the guideline judgment, have less salience in the sentencing process but they are relevant to the assessment of the appropriate penalty for the principal offence. A matter on a Form 1 may have the effect of changing the relevant or appropriate penalty for the principal offence and, in fact, increasing it in the appropriate case.

13 The two offences for which the prisoner was found guilty by a jury in a trial conducted before me, firstly, the offence of breaking, entering and stealing committed on 14 September 2005 at Northmead and an offence of the same date of having in his possession housebreaking implements, namely screwdrivers. The breaking entering and stealing matter carries a maximum penalty of 14 years imprisonment.

14 I point out, in relation to the matters with which I am now concerned, that the offence of 27 April 2005 and the matter on the Form 1 were committed when the offender was on bail in relation to the offences committed in May 2004 and when the offender was also subject to a suspended sentence pursuant to s 12 Crimes (Sentencing Procedure) Act imposed by her Honour Judge Tupman on 6 August 2004. The term of imprisonment which was suspended was twenty months, which would have expired, at least in terms of the period fixed by her Honour without any revocation of the good behaviour bond, on 5 April 2006.

15 The offences committed in September 2005 were committed when the offender was on bail, as I understand it, both in relation to the offences of 2004 and the offence of April 2005 and, of course, were committed when the offender was subject to a suspended sentence to which I have just referred.

16 None of the offences, as I understand it, have a standard non-parole period.

17 The facts in relation to the matters are set out firstly in an agreed statement of facts covering the offences of 2004 and the offences of April 2005 on indictment and on the Form 1. I do not propose to go through those agreed facts in detail. I note the dispute by the prisoner in relation to either the facts or the implications of some of the facts. One matter in particular, raised by the prisoner, is not disputed by the Crown at all and that is that the cash in his pocket and the mobile phone in his pocket were his property and I draw no inference adverse to the prisoner in relation to his possession of those items.

18 On 28 May 2004 a man by the name of Wu returned to his address at Epping and as he entered the driveway he saw the prisoner in the rear yard of his premises and he spoke to him and then chased him. Police were called after the offender had been initially restrained and the offender was placed under arrest. Items of property were found upon him, including the screwdrivers giving rise to the charge on the indictment. There were various pieces of paper with a number of addresses written upon them and the Crown, I assume, would allege that these addresses were in some way concerned with the accused’s either (to use a colloquialism) “casing” premises or identifying premises for future offences. In the context of the charges brought against the accused I cannot be satisfied of that beyond reasonable doubt. Ultimately, although there is some suspicion about the various pieces of paper referred to in the facts, those matters, in my view, are not matters that warrant consideration in the sentencing of the offender in relation to these offences.

19 With regard to the offence on indictment of 27 April 2005 the offender was seen in the vicinity of premises in Pennant Hills by a police officer. Police were notified. The prisoner was seen by other police and chased and eventually arrested. Various items were seen to be thrown by him into the bush. Again he was in possession of a mobile phone, about which no issue was raised by the Crown, and a piece of paper with particulars of what would appear to be phone numbers. The prisoner disputes that the phone numbers on the piece of paper were in fact written by him. Ultimately, in the circumstances of this matter, I draw no conclusion adverse to the prisoner in relation to that piece of paper.

20 Police attended upon premises at Pennant Hills that are identified in the indictment and the owners of the property, when notified, discovered that a flyscreen had been removed and an unlocked window pushed open and various items were strewn in the house, but nothing had been stolen. The offender was interviewed by police and gave what could be called an exculpatory account and claimed, in effect, that he had been apprehended by police when he was innocently going about his business. His plea of guilty indicates otherwise. When the police arrested the offender the motor vehicle that was related to him, or connected to him, was searched and a number of items of property were found including $3,500 of Indonesia rupee and items of jewellery. The items that were found in the car, particularised in the facts, were related to property at Cherrybrook that had been broken into during 27 April 2005 and the owners of the property found that a loungeroom window had been jemmied open. The items of property identified by the victims as being missing included 40,000 Indonesian rupee and various items of the jewellery itemised in the court attendance notice.

21 The offender was interviewed about the Cherrybrook matter on 6 May 2005. He denied ever being to the premises and when asked about items of jewellery relevant to the premises in his car he said he did not remember them being in the car and he did not have them in his car at any time, which clearly could not have been true.

22 With regard to the matter for which he was found guilty by a jury, these offences are concerned with the breaking and entering of a dwelling house of Tharsen and Rajratman Santhagunanathan situated at 15 Russell Street, Northmead where was stolen a laptop computer, two watches, a mobile phone and a quantity of Australia coins and foreign currency, the property of the victims. The offender was found guilty by a jury of having in his possession, without lawful excuse, implements capable of housebreaking, namely screwdrivers, at the time of his arrest.

23 The facts of these offences are quite straight forward as the evidence before the jury demonstrated. His counsel, in my view, did everything he could within ethical limits to represent the interests of his client, but the verdicts of guilty were inevitable. In my view, the Crown case against the prisoner was overwhelming and the matters raised in criticism of the Crown case were without merit.

24 In this matter police were conducting a surveillance operation upon the prisoner. Quite a number of surveillance officers were involved. There was a belief widely held within the Eastwood Local Area Command and elsewhere that the prisoner was a person involving himself in domestic breaking and entering and stealing matters. By reason of his criminal history and his modus operandi he was known as a thief and many unflattering intelligence reports about him were circulated within relevant Local Area Commands in the area near where he lived, although these documents of course were not before the jury in as much detail as brought to my attention. Many of the background matters to the surveillance I summarised in a judgment I gave on 19 October 2006.

25 At about 10am the prisoner left his home at Carlingford and thereinafter was followed by various surveillance police to Russell Street where he arrived some time after 10.25am. Whilst in Russell Street he was the subject of surveillance, some of which evidence I excluded because of the confidential operational character of it, but that surveillance confirmed his presence in the street and his control of what was ultimately discovered to be the stolen property. In Russell Street he had broken into the home of the victims and stole the property particularised. The modus operandi was that of a professional thief. The breaking into this house presented to him no great difficulty. He carried stolen property to the motor vehicle and left Russell Street at about 10.16 am, driving to the Parramatta CBD area. Despite gaps in the surveillance it can be fairly said that the mosaic of evidence clearly established the movements of the prisoner consistent with him having the opportunity to have committed the offence.

26 He parked near the Parramatta CBD and was subject to various types of surveillance whilst he was on foot. He visited a police station apparently to report. He went to a foreign money exchange shop for a period of time. A number of photographs were taken of him during this period. He returned to his motor vehicle, as I understood the evidence, close to midday and thereinafter, by arrangement with the Highway Patrol, he was followed and then pursued to a point where he was stopped just on the northern fringe of Parramatta, or just beyond it. This pursuit and the search of his motor vehicle was the subject of some video recording. The prisoner was found by police to be in possession of property later identified to have been stolen from Russell Street, as well as the screwdrivers. One might have thought on the basis of recent possession alone the case against him as being the offender so far as the breaking, entering and stealing was completely overwhelming. The additional evidence of the prisoner’s movements made it more so.

27 The prisoner has a very lengthy criminal history indeed. Today is his birthday. He is sixty-three years of age, being born on 10 August 1944. He first appeared in the Children’s Court in 1958. He then appeared at Bowral Children’s Court a short time later consistent with the account he has given to me of the Mittagong Boys Home. I must say in passing, that through my experience with the Royal Commission into Aboriginal deaths in custody, I am well aware of matters relating to the mistreatment of people in juvenile custody at Mittagong, at Mount Penang as it was, and even worse still at the Tamworth Boys Home. What the offender has said to me about being sent on a life of crime, as it has turned out, by the experiences of being convicted of offences that were relatively minor and being institutionalised and then being brutalised at subsequent places, I can readily accept. Tamworth Boys Home, which I do not believe the prisoner was sent to, was a brutal institution that would have found pride of place in penal colonies around New South Wales in the early eighteenth century.

28 Be that as it may, acknowledging the prisoner’s embarkation on a life of crime in circumstances where it may well be that the first crimes he committed were crimes of need rather than greed, the offender thereinafter committed, over a lengthy period of time, a large number of offences. In fact, I note an appearance at the Tamworth Children’s Court in 1961. It may well be that he was in that particular institution to which I refer. Eventually, as he got older, he found his way into adult gaols. His first appearance at what was then the Sydney Quarter Sessions in April 1963 when he would have been, on my calculation, eighteen years, involved two motor vehicle larcenies for which he was sentenced to twelve months imprisonment. He also had convictions in 1965 in the Quarter Sessions, as it then was, break and enter with intent to steal and was sentenced to a term of imprisonment. I do note in that regard, however, that in May 1964 at least one judge sought to sever the Gordian Knot by placing him on a bond, as I would describe it, for a period of five years in relation to offences of larcenies of motor vehicles and being found at night with housebreaking implements in his possession. He was ordered to undertake psychiatric treatment and the like. But, as his record reveals, within a short period of time he was back before the courts charged with crimes of dishonesty. I point out in passing that that appearance in 1964 also related to three counts of breaking, entering and stealing.

29 Thereinafter, it becomes a depressing merry-go-round of appearances in court, terms of imprisonment for offences of either breaking, entering and stealing, receiving stolen property, housebreaking implements and possession and the like. Over the next twenty years through to the beginning of this century there are many, many such convictions, various terms of imprisonment, many involving non-parole periods which must have generously recognised the need for professional assistance for the prisoner, even in a time when the need to find special circumstances did not exist.

30 Of course his record is not solely confined to many offences of dishonesty. He was convicted in the Central Criminal Court in 1975 of rape and sentenced to ten years penal servitude with what I calculate to be a non-parole period of four years and to undergo psychiatric treatment. In fairness that conviction is now over thirty years old, and apart from some matters of assaulting police I find no other offences of violence in his record. But it could not be said that his record is free of such matters.

31 Once released from custody, allowing for the fact that whilst serving that term of imprisonment he was further sentenced in the Sydney District Court for breaking, entering and stealing and related matters for which he received an accumulative sentence, the prisoner was again convicted in 1984 of seven counts of breaking, entering and stealing for which he received a total sentence of five years with a non-parole period of eighteen months. Thereinafter the convictions, as I have earlier indicated, continued. I appreciate, of course, that in the 1980’s the sentencing regime was very different now. Many of these sentences would have been subject to remissions and other discounts that no longer apply.

32 The prisoner, notwithstanding this appalling criminal history, came back before the Sydney District Court having just completed a sentence of six years with a three year non-parole period on a steal from a dwelling house and was given the benefit of a two year recognizance to be of good behaviour by his Honour Judge Sinclair. However, having said that, in 1995, again convicted of break, enter and stealing, the prisoner was sentenced to a term of imprisonment. In fact his Honour the Chief Judge sentenced him to three years imprisonment for one count of breaking, entering and stealing, fixing a minimum term of eighteen months, hence making a finding of special circumstances. At about the same time he was dealt with by Judge Flannery who sentenced him to three years imprisonment, again making a finding of special circumstances, and so it goes on.

33 Ultimately, to bring the matter up to a more contemporary position, bearing in mind in 1996 he was again sentenced to over four years imprisonment for a number of breaking, entering and stealing matters, the prisoner came back before her Honour Judge Tupman for offences committed in 2002 and was given that twenty month sentence for breaking, entering and stealing, suspended pursuant to s 12. There was a further offence of breaking, entering and stealing for which her Honour gave him a sentence of six months suspended pursuant to s 12. That sentence would have expired very shortly after the 2005 offences.

34 The criminal history, of course, is one that does not entitle him to any leniency and to quote the words of the majority in Veen (No 2), it in its terms reflects upon the need, as an antecedent criminal history may do from time to time, to place greater emphasis upon matters of personal deterrence and retribution than might otherwise be the case. The appropriate approach to a criminal history such as that has been discussed in a number of authorities, including the decision of Shankley, a decision of Justice Howie in 2003. I am prepared in this particular matter, again with some hesitation, to conclude that I should not find that his criminal history is itself an aggravating factor pursuant to s 21A but that it is to be treated in the manner discussed in the majority judgment in Veen (No 2) as relevant in the two ways identified in that judgment (at p 477).

35 In relation to the prisoner’s background, I have a great deal of material in different reports setting out his personal history. To be frank, much of his personal history, so far as his childhood and other matters are concerned is now so remote from the current time and is in the between time so punctuated by offending behaviour as to be of little importance for current sentencing proceedings. I have acknowledged, in fairness, the circumstances of him first coming into custody and the beginning of the process of institutionalisation which clearly exists. That institutionalisation is reflected in the claim of the prisoner, which may have some truth in it, that he is prepared to commit offences in order to distract police from seeking to pursue him in relation to more serious matters than those with which he is charged. Certainly, notwithstanding some reservations about this current term of imprisonment, the prospect of going to gaol over many years has had no deterrent effect upon him and in reality holds for him no fears save for the fears he must have as an older man in what is, as we all know, a very dangerous environment for those who are unable to defend themselves.

36 Insofar as his background is concerned, however, I note that he grew up in circumstances of some deprivation. He lost contact with his father at an early time. His mother was deserted. He had a violent stepfather and ended up living with a grandmother and was living in poor circumstances, financially and emotionally, when as a child he first offended. He has some contact with half siblings as a result of subsequent relationships that his mother had. He, however, could fairly be described as having a very unhappy childhood. He has very little education but he is, as his counsel says, an intelligent man and it seems to me that even if one were to take the view that there is an element of, without being disrespectful, humbug in his rationale for his offending behaviour, he clearly has insight into the matter. He certainly has the capacity to be able to provide, if not exculpatory accounts for his behaviour, at least what appear to be, from his perspective, plausible explanations for the conduct in which he has been engaged over many years. Of course, he cannot escape the disadvantages of a poor education, in fact a significantly deprived formal education. He, as I understand the evidence, was married for a period of time but that relationship broke down reasonably quickly. There was a son of that relationship, twelve months after the marriage commenced, in about 1973. His wife apparently disappeared with the child, despite the prisoner having joint custody of the child. However, when the boy was seventeen years of age he came to live with his father and apparently the prisoner and his son are on good terms and they have maintained contact. They have lived together and it would appear that his son, as well as a person described as an old friend, are the only true support structures the prisoner has outside of custody.

37 I note the prisoner would wish to return to the premises in Carlingford, from which he was followed in September 2005, on his release from custody. Those premises which are rented are being looked after for him. The prisoner, apart from his spouse, has not had many serious relationships. I certainly do not know the circumstances of the rape that he was convicted of and I note that offence, at least so far as conviction was concerned, arose a couple of years after he was married. One might say small wonder that his wife left him in those circumstances and one might wonder, in the context of this criminal history and this chronology, what advantage joint custody would have been to him when he was in fact in gaol for a reasonably lengthy period of time.

38 The prisoner, at one stage in the late 1990’s, I note from some of the material, conducted a business in relation to either clothing manufacture or sale and apparently that was reasonably successful. It is a little hard to work out from his very lengthy criminal history what time of his life he has been at large to pursue such endeavours. There does appear to be some break in his institutional presence in the late 1990’s consistent with that claim.

39 This lengthy criminal history means of course that he has had extensive contact with the Probation and Parole Service, although it states that the first record of him being supervised is in fact in 1987 notwithstanding the fact his criminal history goes back to 1958. Given his criminal history, even allowing for the fact that he was sentenced to terms of imprisonment at a time when no non-parole periods could be fixed, I have difficulty understanding how this could be so. The sentence imposed in relation to the rape matter reflects a non-parole period of four years and even allowing for the accumulative sentences subsequently fixed by the District Court he must have been subject to some sort of parole supervision. This assertion by the Probation and Parole Service must be put down to a lack of completeness of their records. Be that as it may, he has been the subject of a number of presentence reports and numerous parole reports. He has been breached in relation to recognizances to be of good behaviour. He has been referred to the Parole Board and has had the Parole Board take no action in relation to alleged breaches and then go to gaol in relation to other matters, then be given parole again.

40 A breach of parole report was prepared in 2000 recommending a revocation of the parole order and the parole order was revoked in May 2001. His parole was revoked again in May 2000 but reinstated apparently two or three weeks later when new facts came to light. His criminal history shows breaches of probation supervision or breaches of the benefit of conditional liberty on a number of occasions, including occasions that I have identified in relation to these charges. It appears that her Honour Judge Tupman was persuaded to impose suspended sentences in August 2004 because of the perceived need for the prisoner to attend counselling at Macquarie University to received counselling in relation to matters concerning his cognitive behaviour. This cognitive behavioural therapy was specially targeted at reducing Mr Blaikie’s offending behaviour. Clearly, it was without success. I have heard Mr Blaikie give evidence about this matter. He says that he did attend upon this program but either it failed or he failed to adhere to the assistance or he terminated the program because of what he claimed to be the harassment of him by the police. Certainly he was a target for the police. He may have seen that as harassment, but unfortunately the approach that he takes, that being “harassed” by the police he feels stress and thus he feels the need to commit offences, if it is the truth, unfortunately provides no excuse for the offending behaviour with which I am concerned.

41 The prisoner has said to me that he has spent about thirty years in custody. I have not done the arithmetic but that may well be right. He is a person who would appear to be no difficulty to those in custody and I note positive reports of his behaviour from correctional officers. I think in fairness to him he is regarded as a person of the ‘old school’ and he claims a certain standard of ethical behaviour in relation to the commission of his offences which might appear hypocritical, but may also be reflected in the fact that he targets premises where he would endeavour to avoid contact with people. Obviously this is a modus operandi which is designed to avoid detection but it is to his credit, with the exception of that very serious matter in the Central Criminal Court, that his offences of breaking, entering and stealing are not accompanied by acts of violence, vandalism of an extreme nature, or gratuitous damage to persons or property that appear to be more common in offences of this type.

42 The Probation and Parole Service refers to a number of reports that have been prepared in relation to him and to be truthful, late in the day, I have to acknowledge that I have been somewhat buried by what could be called a suffocating number of documents involving historical records, particularly of psychological and psychiatric examination of the prisoner. I will endeavour to give this material as much justice as I can.

43 It appears from the material available to me, firstly, that the prisoner has clear physiological evidence of frontal lobe damage and there is some damage to his cervical spine. He has a history of head injury. He had a significant head injury in 1964 in a motor vehicle accident. In 1984 he fell down a cliff face sustaining a loss of consciousness and injuries to the left side of his head and clavicle. There is a suggestion of a head injury in 1991. He has been examined with CT scanning and other medical imagining. He has been looked at by neurologists, psychologists and psychiatrists. The frontal lobe damage claim I believe is irrefutable. However, it is to be borne in mind that these tests have been largely undertaken from 2002 onwards, albeit there is the report of 1991 confirming the fall down the cliff in 1984. Certainly there is no evidence before me that the 1964 injury in any way has contributed to his offending behaviour up until, for example, 1994 or 2000. In fact the evidence is overwhelmingly I think, with the sole exception of the opinion of Professor Susan Hayes, that whilst there are frontal lobe anomalies they are not of a severity and sufficient magnitude to explain what is called his compulsive stealing, from which precisely he suffers.

44 I appreciate Dr Hayes, a very eminent clinical psychologist, believes that at the time she wrote a report in 2002 and again in 2003 that the prisoner’s offending behaviour is

“related to his organic brain damage and specifically to his inability to plan and organise effectively and the discrepancy between what he says and what he actually does.”

45 I have difficulty understanding that analysis in a number of ways. Firstly, it seems to me, with respect, that in some respects from the material I have about these offences the prisoner is a person who seems to be able to organise and plan effectively. She says that because of stress he tends to fall back into previous patterns of behaviour even though these patterns of behaviour are irrational and maladaptive. There is a claim the prisoner makes that, as I have said earlier, stress causes him to commit these crimes. In my view, that could not be regarded relevantly as a mitigating factor. She noted that he was not a dangerous or violent man but said that his offending behaviour was related to, if not directly caused by, a “diagnosable psychiatric disorder” namely “organic brain damage”. She said that he was at risk if he received a custodial sentence. I assume the content of her report and related reports were of some significance in the assessment made of the matter by her Honour Judge Tupman. I do not want to be taken to criticise her Honour, because, to be frank, there comes a time sometimes when again one tries to sever the Gordian Knot of offending by taking a novel approach, even after many years of offending behaviour.

46 This brings me to two further reports of more recent origin. There are the psychologists’ reports of June 2004 from the Macquarie University Psychology Clinic. These reports apparently were available for her Honour Judge Tupman and these reports were obviously designed to assist her Honour or some other judge in sentencing the offender for two outstanding charges of breaking, entering and stealing. They contain much the same history as I have outlined. They concluded that the prisoner was in effect institutionalised, saying that he was “brought up in the criminal justice system. His upbringing has impacted upon his behaviour, whilst his grandparents instilled traditional values of respect and other positive matters, and his offending was a source of shame and disappointment he reacted to what he regarded as slights and injustices”, and that is much the tenor of his evidence before me that his current predicaments are in some respect caused by injustices heaped upon him by investigating police. The prisoner is said to be institutionalised and was a person who identified with the custodial system because of the fact that it provided him some structural support missing elsewhere in his life. This report stated that he had responded well to treatment given him up to that time, of the character available from the Macquarie University, and recommended that he continue with that treatment, which he did for a period of time, but ultimately unsuccessfully notwithstanding the excuses he has given.

47 The most up to date report I have is the report of Dr Greenberg which is prepared on the basis of a claim by the prisoner, in a letter that he wrote directly to me that I passed on to the authorities for obvious reasons, that he was unfit to be tried. He was actually found fit to be tried. The report of Dr Greenberg was primarily designed to address those issues. It noted past reports from Justice Health that variously described the prisoner as “a sociopath without regard for consequences”, a person having a “sociopathic personality disorder” and who had been diagnosed by Dr Thomas Oldtree Clark in 1995 whilst in custody as having “obsessive compulsive personality disorder” with “obsessive traits mixed with avoidant behaviour”. All of those diagnoses might describe the prisoner’s conduct over a period of time. Ultimately, Dr Greenberg came to the conclusion that whilst there were mild cognitive changes there was nothing that represented an explanation for the prisoner not understanding the proceedings. In fact, the psychiatrist found that the prisoner was in fact fit to be tried and there was no mental illness disorder. He said in his report that the primary diagnosis was that of a man with significant antisocial personality disorder. This had been exhibited throughout his adult life and was well entrenched. He reflected upon the history of head injury in 1984 and in 1991-1992 but he concluded whilst he does have some difficulties with memory and recall, his attention and concentration were adequate. He was orientated in time. He said that only with formal neuropsychological testing could subtle cognitive deficits be detected.

48 Dr Westmore’s report, attached to the Probation and Parole Service report from April 2004, again I assume that was before her Honour Judge Tupman, came to the conclusion, on all the material available, including access to Professor Hayes’ report and a number of psychological reports that have been provided to me, that the prisoner was a person who suffered from an ‘adult antisocial behaviour disorder’. This is not a specific psychiatric disorder. He said it was a term used to describe “professional criminals”. He said it was a descriptive term. Individuals who participate in a repetitive offending pattern are extremely complex from the psychological perspective and each individual is different in terms of how and why they engaged in repeated antisocial behaviour. With regards to Dr Clark’s diagnosis he suggested the prisoner may be an obsessional man with some rigid views about certain topics or issues as was reflected in his evidence before me. However, he would need more information. As for the organic brain disorder, whilst he said it was there he agreed that the organic brain changes are not in and of themselves sufficient to explain his long history of offending behaviour, noting the opinion of Professor Hayes. As to a provisional or problematic diagnosis of kleptomania, he said there needed to be further exploration of that matter. In relation to his antisocial personality disorder, he noted his behavioural patterns had not reduced or modified. He noted the prisoner had told him then, in 2004, that he was too old for this type of behaviour. He noted that most people with antisocial personality disorders have either stopped or significantly reduced their criminal activities by the time they reach this man’s age. In reflecting upon the matter in summary he concluded whilst the prisoner had genuine concerns about his own behaviour and whilst repeated imprisonments did not appear to have acted as a deterrent for him he was unable to indicate to the Court, at that time, what his prognosis was from a forensic prospective. It was possible that he could return to some type of gainful employment but his lengthy incarcerations had obviously impacted upon his social development. He thought that he could benefit from treatment and he noted that the prisoner had developed “ethics” in relation to his offending behaviour and these observations of him and his claims in these regards were supportive of the opinion that he engages in “adult antisocial behaviour”. He said that a further custodial sentence will not significantly alter his behaviour but he noted his anxiety about further imprisonment. Ultimately, from a psychiatric or psychological perspective, the truth of the matter is that there are obviously significant psychological issues at play here. They are matters that are very difficult to treat and may never be amenable to treatment. It is also to be borne in mind that the evidence does not establish any causal link between his psychology and the offending behaviour such as to warrant consideration of the principles set out at Engert v R ((1995) 84 A Crim R 67) and other cases where it has been held that a mental disability or condition may have the effect of diminishing the need to place emphasis on general deterrence. In this matter, in any event, even if that were true, there would still be the need to give greater weight to matters of personal deterrence given the difficulty in treating the condition.

49 In sentencing the offender I am required, according to Pearce v The Queen, to fix an appropriate sentence for each offence and give proper consideration to issues of concurrency and accumulation to reflect the totality of the criminality. These matters are discussed at [45] of that decision at (1998) 194 CLR 610. I am mindful of what was said about the issue of the appropriate concurrency of sentencing when sentencing persons to terms of imprisonment in the decision of Hammoud. In this particular matter, of course, I am concerned not to double dip, bearing in mind a number of offences were committed whilst on bail for other offences and these are aggravating factors. There is a separation, however, in the criminality of the offences committed at various times in 2004 and 2005 and in my view there is a need to partially accumulate those sentences to reflect the fact that the offences in question are at various times different acts of the criminality.

50 In relation to this matter I have determined that there are “special circumstances” that arise in relation to the last of the sentences I will impose. The special circumstances firstly are the fact that sentences will be partly accumulative upon one another and this of course has been long recognised as a special circumstance warranting an adjustment of the relevant non-parole period. I have determined on the totality of the material, notwithstanding the failure of the prisoner to take advantage of the cognitive therapy he received in 2004 and 2005, to make a slight adjustment of the non-parole period in relation to the last sentence in time to recognise the fact that the prisoner, with his long history of institutionalisation, will need professional assistance to adjust to community living and will clearly need, in my view, direct supervision to undertake the therapies that the prisoner has told me that he would wish to pursue on his release from custody. His counsel sought special circumstances. His solicitor, after his counsel left court a little while ago, raised the issue of his experience with prisoners with lengthy criminal history being given an opportunity, notwithstanding the fact that they had spent many years in gaol for different types of offending. I note in relation to this issue that Justice Wood, in the judgment of R v Moffitt (1990) 20 NSWLR 114 (at pps 120-121), raised the very point that a finding of special circumstances might be made in relation to young offenders to assist them to rehabilitate themselves on release from custody. That finding may also be appropriate for offenders with long criminal histories, spending significant time in custody, who will be released from custody to find a changed world.

51 In my view, adjusting the non-parole period to enable the prisoner to have a two year period of supervision recognises, ultimately, the community advantage, if it can be achieved, in assisting the prisoner. There is, of course, I think, strong evidence to suggest the prisoner’s capacity to avoid offending will only cease when he is physically too old to offend or when he dies, which is a very sad state of affairs.

52 I have had regard, I should hasten to say, to the Crown’s written submissions and, of course, Mr Conomos’ written submissions. I am required to backdate the sentences to take into account all relevant terms of custody. On the figures provided to me by the learned Crown prosecutor the periods of custody, other than the continuous custody the prisoner has been in since 15 September 2005, on the Crown’s calculation a total of four months and on my calculation eleven days or thereabouts. I have determined that I should start the sentences, in the circumstances, from 1 May, which might give the prisoner the benefit of two or three days extra but then again there may have been two or three days lost through police custody. I do not think it makes a great deal of difference.

53 I should hasten to say, in the Crown’s submissions, putting aside the fact that s 21A Crimes (Sentencing Procedure) Act has somewhat overtaken in many respects the matters discussed by Justice Grove in Ponfield, that there are features of the offence of breaking, entering and stealing or related offences discussed in Ponfield [1999] NSWCCA 435, being aggravating factors, that arise in this particular matter. There is no doubt the prisoner is, if not a sophisticated, certainly a professional housebreaker. I would imagine very few premises present him with a challenge. He may obviously choose premises that are not protected by security such as alarms and the like, but the evidence before me reveals very much the ease with which he was able to gain access to relevant properties. This aspect of the matter is recognised in Ponfield as a matter that reflects upon the seriousness of the offence. Some of the other features arising out of Ponfield I will deal with under s 21A. It is correct to say in the context of that guideline judgment that a prior record of like offences, in the way that it was discussed in Veen (No 2), is able to explain the offending behaviour for sentence.

54 In relation to s 21A Crimes (Sentencing Procedure) Act the matter is visited by several aggravating factors, in my view, in relation to the offences committed in April 2005 and September 2005. The most significant aggravating factor arising out of s 21A(2) is that the offences were committed whilst the prisoner was subject to conditional liberty. He was on bail and subject to the bond ordered by her Honour. Of course, the various offences have different characteristics, some of which do not involve factors such as the extent of loss or injury. For example housebreaking implements in his possession, cannot have that particular aggravating factor but the offence of breaking, entering and stealing in September 2005 is an offence that has the aggravating factor that the loss of property to the victims was potentially substantial. Then again the property was recovered. Ultimately loss or damage is not a relevant aggravating factor.

55 In relation to the offending in question and particularly the offence in September 2005, in my view, it was a planned offence, in that the offender was prepared and ready to break into particular domestic premises that would accord with his modus operandi. The extent to which he had undertaken enquiry to choose this particular property I do not know, but the evidence is overwhelming that when he was followed by the police that he was looking for a particular area of Sydney where he could find domestic premises which were unattended and used his skills to break into them.

56 The other offences involving entering properties or breaking into properties to which he has pleaded guilty have much the same hallmarks.

57 With regard to mitigating factors, there are very few. Indeed, some of the charges of course do not involve substantial loss, either because the property was recovered or alternatively it is not a feature of the cases in any event. In fairness to the prisoner, whilst he forced entry to the premises that he entered, as particularised, there was little damage done. There is certainly no suggestion of vandalising premises.

58 In relation to any other mitigating factors, I take into account the plea of guilty, where it was entered in relation to those charges, as a mitigating factor as provided for by s 22 Crimes (Sentencing Procedure) Act. I note in relation to the plea of guilty in passing that the prisoner is entitled to the discount that arises from the utilitarian benefit of the pleas of guilty in accordance with the guidline judgment of Thomson and Houlton.

59 In relation to the offences of 2004 those pleas were entered very late, in fact entered today. The prisoner will receive a ten per cent discount in relation to those matters.

60 In relation to the offence committed in April 2005 the plea was entered at an earlier stage but after the prisoner had been committed for trial. In my view the appropriate discount for that offence is fifteen percent upon the otherwise appropriate sentence. Of course there can be no discount for those offences to which he pleaded not guilty. The fact that any aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

61 I note in relation to this matter there is little in the way of contrition or remorse. There is inherently in the plea of guilty some element of remorse and contrition but there has been, whilst the prisoner has expressed regret for his conduct, little evidence in my view of real remorse for the effect upon victims. The prisoner has from time to time said to various interviewers that he regrets his actions and he feels sorry for the victims, but I note these historical assertions have been followed by further crimes which have involved violation of the privacy of individuals which the prisoner, it seems to me, does not concern himself about in a real and meaningful way.

62 The Crown has drawn to my attention the decision of Harris. That is a recent decision of the Court of Criminal Appeal concerned with offences of a like nature committed in 2006. The sentences imposed by the learned Judge at first instance were the subject of a Crown appeal. The appeal was allowed and the various sentences imposed by his Honour Judge Hughes were increased. I bear in mind of course sentences of the Court of Criminal Appeal in relation to like offences provide guidance to this Court but there are no judgments of such a character that are binding precedents. I have taken into account that judgment and its effect as providing some guidance. But every case needs to be determined on its own facts.

63 One last matter, in fairness to the prisoner, in his favour. I have taken into account the various documents relating to his involvement with the Rural Fire Service. I assume this is involvement when he was serving a sentence at Cessnock Gaol. There seems to be a connection between him and the gaol and the Rural Fire Service. It seems as though he made a conscientious and meaningful contribution to the Fire Service with suggestions in relation to its activities. It shows that he is a man with intelligence and the capacity to make a contribution in a constructive way to the community. The problem is this constructive contribution to the community has occurred on so few occasions. I also note that he has undertaken some courses whilst in custody. Given his age and his employment history however, it seems to me little prospect of him, on release from custody, finding his way into the workforce.

64 Thus the orders I make in relation to these matters are as follows, if you don’t mind standing up please, Mr Blaikie, allowing for the discounts that I have given you in relation to the relevant charges in respect of the two offences committed in May 2004 in respect of count one, that is the housebreaking implements offence, you are convicted. You are sentenced to sixteen months imprisonment to date from 1 May 2005. That term of imprisonment will expire, on my calculation, on 31 August 2005.

65 With regard to count two on that particular indictment, you are convicted. You are sentenced to two years and eight months imprisonment. That sentence, too, will date from 1 May 2005 and on my calculation that will expire on 31 December 2007.

66 In relation to the matter on the indictment committed on 27 April 2007, this is the break and enter with intent to steal, taking into account the matter on the Form 1, you are convicted. You are sentenced to three years imprisonment. That will date from 1 May 2006 and that sentence will expire on 30 April 2009.

67 In relation to the offence of breaking, entering and stealing committed on 14 September 2005, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of two years. That will date from 1 May 2007 and expire on 30 April 2009. In relation to that sentence I fix a balance of sentence of two years and that will expire on 30 April 2011.

68 In relation to the second count on that indictment the offence of having in your possession implements cable of housebreaking you are convicted. You are sentenced to two years imprisonment. That sentence will date from 1 May 2007 and expire on 30 April 2009.

69 Your release to parole will be a matter for the Parole Board but when you are released to parole you will be subject to the supervision of the Probation and Parole Service. I note that you have asked me not to fix a non-parole period. I decline your request. You should understand of course that if I decline to fix a non-parole period it would not in anyway affect the sentence of imprisonment I would impose upon you. It would not mean that I would impose a lesser term of imprisonment and the sentence of four years in relation to the first count on the indictment. Ultimately, the sentence I impose involves a total term of imprisonment of six years with a non-parole period of four years that will date from 1 May 2005 and it will expire on 30 April 2009. Just take a seat please, Mr Blaikie.

70 Madam Crown, are there any technical matters?

71 CINQUE: No, your Honour.

72 HIS HONOUR: Sir, are there any technical matters?

73 SPEAKER: No, your Honour.

74 HIS HONOUR: Do you understand the sentence, Mr Blaikie?

75 OFFENDER: I do, your Honour, and if I may I intend to appeal against the parole period because I do not want parole.

76 HIS HONOUR: My advice to you would be not to say too much because everything you are saying at the moment is being recorded and will be for the benefit of the Court of Criminal Appeal, but as to appealing, that is--

77 OFFENDER: I understand that, your Honour, that’s why I’m saying it.

78 HIS HONOUR: That is entirely your right.

79 OFFENDER: Because I know the Parole Board, they will not give me parole. It’s ..(not transcribable).. It’s fruitless putting me up for parole because I know what’s going to happen.

80 HIS HONOUR: It might be that other people might agree with that and they might find, or take the view if not find that my finding of special circumstances was inappropriate in the circumstances, but--

81 OFFENDER: Everybody else that has a drug problem, the whole problem, I’ve said it before, it’s speaking for them. Idiots like myself it is nothing but junk, so I will appeal and I also raise in your submissions that you’ve made factual errors such as I was not on bail in April 05 from 04. I was not on a six months suspended sentence in April 05--

82 HIS HONOUR: Mr Blaikie, you were subject to a 20 month suspended sentence that was imposed in August 2004.

83 OFFENDER: Yes, I was and--

84 HIS HONOUR: That was imposed apparently on 31 August 2004.

85 OFFENDER: 16 August 19--

86 HIS HONOUR: In terms of the six months suspended sentence I will correct my judgment. That is an error on my part. I miscalculated it in the heat of the moment.

87 OFFENDER: That finished 1 March 05 your Honour.

88 HIS HONOUR: But do you think it makes a difference with the greatest of respect to you that one of those suspended sentences had expired?

89 OFFENDER: Because--

90 HIS HONOUR: No seriously, Mr Blaikie.

91 OFFENDER: No, yeah, but the criminality of it is I did not break that suspended sentence. I was not on bail from 04. That’s all I’m trying to say your Honour.

92 HIS HONOUR: Mr Blaikie, you tell me--

93 OFFENDER: Your Honour, I don’t understand--

94 HIS HONOUR: You tell me, Mr Blaikie, as a matter of academic interest how you could be arrested in May 2004 and not be sentenced in relation to the matter and not be on bail in relation to the matter in 2005?

95 OFFENDER: Sorry, I--.

96 HIS HONOUR: It doesn’t matter, thank you.

97 OFFENDER: What I can’t understand is that the parole period you’ve give me today, your Honour, for the break and enter offence which I was found guilty for starts this year. By the time that comes up I’ve done three years eight months.

98 HIS HONOUR: Mr Blaikie has drawn to my attention that there was one factual error in my judgment which is absolutely correct. The six month term of imprisonment suspended by her Honour Judge Tupman had in fact expired by the time that Mr Blaikie committed the offences in 2005 but it is a matter that makes no difference to my ultimate findings.

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