Citation: R v John Arthur Blaikie [2007] NSWDC 311
Court: District Court of New South Wales
Date: 10 August 2007
Judge(s): Norrish QC DCJ
Background
The offender appeared for sentence on multiple property offences committed across three separate occasions between May 2004 and September 2005. The offences included possession of housebreaking implements, entering land with intent to steal, break and enter with intent to commit a serious indictable offence, and breaking, entering and stealing. Two counts were resolved by jury verdict; the remainder were resolved by guilty plea.
A significant aggravating feature was that each successive set of offences was committed while the offender was on bail for earlier charges. The April 2005 and September 2005 offences were also committed while the offender was subject to a suspended sentence originally imposed by Judge Tupman in August 2004, although the court acknowledged a factual correction: one component of that suspended sentence had already expired before the 2005 offences occurred.
A Form 1 matter (receiving stolen property) was taken into account in relation to the April 2005 break and enter, in accordance with the Court of Criminal Appeal's guideline judgment on Form 1 matters.
Legal Issues
- What sentences were appropriate for each offence, having regard to the plea discounts, the Form 1 matter, and the offender's criminal history?
- How should the sentences be structured given the staggered dates of offending and the period of presentence custody?
- Whether "special circumstances" existed under the Crimes (Sentencing Procedure) Act 1999 to justify a departure from the standard non-parole period ratio, particularly in a case of accumulated sentences.
- Whether the offender being on bail and subject to a suspended sentence at the time of each offence was a proper aggravating factor.
Decision
Norrish QC DCJ sentenced the offender to a series of partially accumulated terms, structured around the dates of each offending episode. The 2004 offences attracted sentences of 16 months (housebreaking implements) and two years eight months (enter land with intent), both concurrent and running from 1 May 2005. A ten per cent discount applied to each, reflecting the guilty pleas.
For the April 2005 break and enter with intent (taking into account the Form 1 receiving matter), the court imposed three years imprisonment, running from 1 May 2006 and thus partially accumulating on the earlier sentences. For the September 2005 offences resolved at trial, the court imposed four years for breaking, entering and stealing, and two years for possession of housebreaking implements, both running from 1 May 2007.
The court found special circumstances, warranting a departure from the standard non-parole period ratio. Two bases supported that finding: the accumulation of sentences produced an overall term longer than any individual sentence, making a standard ratio unduly harsh; and the offender had a demonstrated need for an extended period of supervised release to assist reintegration into the community. The effective total sentence was six years with a non-parole period of four years.
The court declined to omit the non-parole period at the offender's request, even though he expressed concern that the Parole Board would refuse him parole. The court noted that the prospect of the Parole Board refusing release was not a proper basis for denying the offender the statutory entitlement to have a non-parole period fixed.
Orders Made
- Possession of housebreaking implements (2004): 16 months imprisonment from 1 May 2005 (10% discount applied)
- Enter land with intent to steal (2004): 2 years 8 months imprisonment from 1 May 2005, concurrent with the above (10% discount applied)
- Break and enter with intent (April 2005, with Form 1 matter): 3 years imprisonment from 1 May 2006
- Break, enter and steal (September 2005, count 1): 4 years imprisonment from 1 May 2007, non-parole period of 2 years (expiring 30 April 2009)
- Possession of housebreaking implements (September 2005, count 2): 2 years imprisonment from 1 May 2007
- Effective total: 6 years imprisonment with a non-parole period of 4 years
Key Takeaways
- Accumulated sentences can constitute special circumstances under the Crimes (Sentencing Procedure) Act 1999, because the overall effective term may otherwise produce a non-parole period disproportionate to the rehabilitation and supervision needs arising from any single sentence.
- An offender's belief that the Parole Board will refuse parole is not a valid basis for the sentencing court to decline to fix a non-parole period; the entitlement to have one set is distinct from the question of whether parole will ultimately be granted.
- Committing offences while on bail for earlier charges was treated as a material aggravating factor, adding to the overall criminality assessed across each episode of offending.
- Where a Form 1 matter accompanies a principal offence, the District Court applied the Court of Criminal Appeal's guideline approach: the Form 1 carries less weight than the principal offence but may still justify an increase in the penalty imposed for that principal offence.
- Minor factual errors in a sentencing judgment (here, the precise expiry date of a component of a suspended sentence) do not necessarily require correction of the ultimate sentencing outcome if they do not affect the findings that drive the result.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 12 (suspended sentences)
Cases
- 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