R v Neil Andrew PETTERSEN

Sentence 1HIS HONOUR: Stand up please Mr Pettersen. My practice is to tell prisoners in advance what sentence I intend to impose. In your case I propose to fix a non-parole period of four years three months, an effective non-parole period of four years three months, and the balance of sentence will be three years. Take a seat, thanks very much. That involves a finding of special circumstances and I will explain the reason for that shortly. 2Neil Andrew Pettersen appears today for sentence in relation to two offences and requires me to take into account matters on a Form 1 in relation to one of those offences, hereinafter to be referred to as "the principal offence". 3The first offence in time is an allegation that the prisoner on 20 March 2011 at Rosehill in the State of New South Wales did conspire to break and enter the warehouse of The Perfume Network situated at ... Rosehill and then in the said ... warehouse did conspire to commit a serious indictable offence, to wit steal in circumstances of aggravation, to wit he was in company with other persons, namely, Yashar Gogani and other unknown persons. 4This offence is an offence contrary to s 112(2) Crimes Act 1900. It has a maximum penalty of twenty years imprisonment and a standard non-parole period of five years imprisonment pursuant to Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999 ("the Act"). 5The second offence in time, and the principal offence because it is the matter to which the Form 1 matters are related, is an allegation that the prisoner on 14 May 2011 at Belrose in the State of New South Wales did attempt to break into a certain building, to wit the warehouse of Bright Point within the curtilage of the dwelling warehouse belonging to Bright Point situated at 2 Minna Close, Belrose with intent to commit a serious indictable offence therein, to wit, steal in circumstances of aggravation, to wit, he was in the company of Shawn O'Mealey, Jack Dunn and other unknown persons. 6This is said to be an offence contrary to s 113(2) Crimes Act 1900 and has a maximum penalty of fourteen years imprisonment but no standard nonparole period. The matters on the Form 1 are offences that are related to the commission of one or other of the two offences for which the prisoner is to be sentenced. 7Offence 3 on the Form 1 is an offence of taking and driving a conveyance, to wit, a motor vehicle, registration number BB58UH, without the consent of Jamil El Helwah. This was an offence committed on or about 20 March 2011, and, clearly on the facts available to me, was concerned with the taking without the consent of the owner of the motor vehicle that was proposed to be used in a breaking, entering and stealing or in reality a "burglary", which was called off when the offender and others realised that they were being followed by an undercover police officer. 8Items 1 and 2 on the Form 1 are both taking and driving a conveyance offences. The taking of two motor vehicles, one registration number NBK 50M, without the consent of the owner, and the other registration number YAA 477, without the consent of the owner, from Belrose, clearly in connection with the commission of the principal offence, which was proposed to be in effect a "burglary" upon commercial premises in the Belrose area. 9The facts of the matter are set out in a statement of facts, although I note the prisoner has given evidence in relation to the matter, which I have taken that into account. Before I turn to the facts, however, I note the prisoner was a person who - I am informed by the Crown and the defence - pleaded guilty at the Local Court. As I understood the matter in the course of submissions, without having a detailed history available to me, the prisoner had pleaded guilty at the first reasonable opportunity to the principal offences and with no evidence to the contrary available to me I conclude that the prisoner is entitled to a discount of twenty-five per cent to recognise the utilitarian benefit of his pleas of guilty and his admissions of guilt to the matters on the Form 1. 10I note in relation to the matters with which I am concerned, the prisoner was on parole at the time of the commission of both of these offences and I note that as a consequence of his arrest in relation to this matter on 6 September 2011 his parole was revoked, as one would expect. Committing offences while subject to parole is a significant aggravating factor as is well known. Of course, there are various types of conditional liberty to which offenders can be subject. The courts have regularly taken a serious view of any breach of conditional liberty, but a breach of parole by committing offences of a character similar to the offences for which the offender was on parole in the first place, as I have said, is a significant aggravating factor. Of that there can be absolutely no doubt. 11In considering the issue of the commencement date of any sentences I impose, I bear in mind that the prisoner's revocation of parole meant that he is required to serve the balance of parole between 6 September 2011 and 21 April 2012, that is this coming Saturday. I am mindful of the practical reality that, whilst awaiting the disposal of these matters, he would be denied any opportunity to make application for parole. But then again, of course, any sentence any person imposed on the prisoner in relation to these matters would expire well after the expiration of that sentence required to be served by reason of the parole being revoked. 12In considering a commencement date in relation to this sentence I have considered Simpson J's judgment in the decision of the Court of Criminal Appeal of Callaghan v The Queen [2006] NSWCCA 58. Her Honour - without going through the judgment in detail - discussed a range of considerations of a discretionary character that arise in relation to a sentencing exercise where an offender is subject to a revocation of parole, and is serving a sentence consequently at the time that the offender comes before a Court to be sentenced in relation to other offences. 13Of course, it is within my power to commence the sentences that I am required to impose effectively from a date such as 21 April 2012. On the other hand, Simpson J referred to the double dipping effect of taking into account a breach of conditional liberty as an aggravating factor and following that course of action. Ultimately I have concluded that I should commence the sentences effectively that I will impose from 6 February 2012, which is, bearing in mind the fact the prisoner came back into custody on 6 September 2011, a period of five months after coming back into custody. 14To turn to the facts. The statement of facts is very detailed and deals with each of the offences in chronological order. The prisoner and Yashar Gogani were the subject of a police investigation well before the prisoner actually committed the offences with which I am concerned. This is not fully explained to me and seems to be, frankly, on its face, a situation somewhat at odds with the prisoner's explanation for his involvement in the commission of these offences. But be that as it may, telephone conversations were intercepted from January 2011 and what they revealed is that the prisoner had been planning with Gogani to break into The Perfume Network from as early as 2 February 2011. They, on that date, spoke to a person of "Islander appearance" who, as I understood the facts, was the same person of "Islander appearance" who was involved with the prisoner and Mr Gogani in the early hours of 21 March 2011 when the plan to "knock over" The Perfume Network was called off. 15Gogani, Pettersen and the other man drove to the vicinity of the business complex at Rosehill where The Perfume Network was located and effectively did a reconnoitre of the location. 16On 8 March the prisoner and Gogani went to a Bunnings store at Artarmon and bought items consistent with implements to be used for a burglary or a breaking and entering, including a large set of bolt cutters, an axe and a pair of gardening gloves. Telephone intercepts revealed the plan unfolding over the following days. On Sunday 20 March 2011 Gogani picked up Mr Pettersen from an address at Cammeray. They travelled to North Parramatta. There Mr Gogani and Mr Pettersen got out of the vehicle; they both approached the vehicle BB58UH belonging to Jamil El Helwah 17Item 3 on the Form 1 relates to this event. One or other of them, drove that vehicle away. It was the case that the prisoner was in fact seen in the driver's seat of the Isuzu truck at 11.41pm, approximately an hour and a half after they were seen to approach the vehicle. The two offenders, of course, being under constant police surveillance at this particular point of time. 18When the prisoner was seen driving the vehicle he was seen to be parked near to Mr Gogani's motor vehicle; they then travelled in "convoy" to Parramatta. The car that had been unlawfully taken was left unsecured, with the ignition removed. This vehicle suffered extensive damage as a result. The vehicle was left 150 metres away from The Perfume Network. 19The prisoner and Gogani then drove to Rydalmere, that is, away from the location of the planned crime, but the reason for that self-evidently was because a lawfully intercepted text message revealed that they had identified an undercover police officer had been following them. They called off the assistance of at least the Islander male, who was told that the job was "off" and was "cancelled". There is no doubt that they abandoned the car that had been previously taken and driven to Rydalmere because they understood they were under surveillance. 20It is not without some significance that the vehicle that they took, that is, the vehicle belonging to Mr El Helwah, was in fact an Isuzu truck consistent with their intention of removing a large amount of property from The Perfume Network. 21At 5.15am on 1 April 2011 an unidentified person removed the fly screen from a side window of an address at Cammeray, lifted up the window and stole the car keys to a Mercedes C63 AMG station wagon. This was a high performance vehicle. It bore the New South Wales registration plates NBK 50M. The vehicle was then stolen from the garage of the premises. A surveillance device warrant, authorising the use of listening devices, was issued on 7 April 2011 and certain targets were identified including Mr Pettersen and Mr Dunn, who I understand is the brother of the prisoner's partner, either he or Mr O'Mealey, it doesn't matter much. 22Between 6pm on 5 May and 12pm on 6 May the rear registration plate from motor vehicle AZT 38R, a 2006 silver Mercedes sedan, was stolen from a vehicle at Neutral Bay. On 6 May 2011 police located the stolen motor vehicle NBK 50M, bearing the stolen registration plate on the rear of it, inside a private garage at 2/15 Wilga Street, Bondi. Pettersen, according to the facts I have, arranged for the leasing of this garage from the owner. A listening device and tracking device was then installed in this vehicle by police. 23I pause to point out that, although the facts do not state this directly, it is apparent from these facts that the prisoner had possession of this motor vehicle from at least 6 May 2011 because the vehicle was stolen from Cammeray where the prisoner was apparently living at the time, or at least was in a suburb that the prisoner did have a connection with, when he was picked up by Mr Gogani back in March 2011. 24On 14 May Mr Pettersen drove the stolen motor vehicle, as it has been described, that is the car that had been stolen from Cammeray, from the garage at Bondi, to Mount Vernon Lane, Glebe. O'Mealey was a passenger in the vehicle. The listening device recorded conversations between the two individuals inside the stolen motor vehicle were monitored and clearly Mr Pettersen and Mr O'Mealey were identified and a tracking device showed the vehicle being driven to various locations in Sydney. The recorded conversation suggests that O'Mealey collected a police portable radio and they later met up with the stolen motor vehicle MS 2530, being a black Audi RS4 wagon containing the co-accused Jack Dunn and two other unidentified males in Lilyfield. The two stolen vehicles then travelled together to Chatswood and later the offenders were seen to speak to each other. 25In relation to the take and drive conveyance, that is YAA 477, the two stolen vehicles travelled to 19 Pringle Avenue, Belrose. The occupants of both vehicles in the facts provided to me are said to have "assisted in the theft of a white 2002 Toyota Hilux tabletop utility" bearing New South Wales registration number YAA 477. This vehicle is owned by James Blackman who at no time gave permission for the car to be taken. Mr Blackman is not related to the man I sentenced fifteen minutes ago, another Mr Blackman. 26The three stolen vehicles then travelled in convoy to the premises at 2 Minna Close, Belrose. I hasten to say it is not without significance that this offender, in company with the other offenders, was responsible for the taking of a Toyota tabletop utility. The use of such a vehicle, clearly, was for the purposes of carrying away as much as, at least, the utility, if not all the vehicles, could carry away. This makes a complete nonsense of the claim of the prisoner that he was involved in this particular breaking and entering to recover goods that would enable him to pay five or six thousand dollars to another person. I am quite satisfied that he, at least, and the other offenders were concerned to break into commercial premises to steal as much as they could get away with, including Vodafone mobiles and iPhones. Bright Point Australia Pty Limited had a distribution centre for various telecommunications companies in New South Wales at 2 Minna Close, Belrose. The premises had twenty-four hour on-site security, closedcircuit television and a six foot steel fence around the site. 27The stolen vehicle YAA 477 was recorded on security closedcircuit television to be driven through and breaking open the closed security gates with the other two vehicles following behind. The CCTV recorded the vehicles parking and occupants from the vehicle attacking the warehouse. Dunn and Pettersen remained in the driver's seat of the respective vehicles while the other three occupants, one of similar appearance to O'Mealey, used a crowbar to attempt to gain entry to the warehouse via the fire door. The three males caused damage to the door, however, they were unable to enter. 28At 4.11am the three males returned to the vehicles, MBK 50M and MS 2530, which were then driven from the scene. YAA 477 was left on the premises. How extensively damaged it was from driving through the closed security gates I am not able to conclude, but certainly it was of no use to them if they could not take anything from inside the premises. Pettersen drove NBK 50M to a residential unit at 7 Grasmere Road, Cammeray where the vehicle was left parked and unattended. The other vehicles were driven to another location. I hasten to say this prisoner is not charged with the theft or the taking and driving without the owner's consent of vehicle MS 2530. 29Later on 14 May 2011 police retrieved the listening device contained within the Mercedes station wagon. In relation to this device it recorded conversations between Pettersen, O'Mealey and Dunn. Pettersen is recorded talking about the value of iPhones and the number of phones in a box, O'Mealey talked about using Windex to clean the vehicle. A Windex bottle was later found in the garage used to store the stolen Mercedes. Various DNA tests were undertaken in relation to that item. Police believe Dunn was the driver of the second stolen vehicle MS 2530 at relevant times. There is discussion between various parties about driving through the gates. Pettersen is recorded as discussing the fact that he would "rather be driving the car", the accused Dunn "is driving as it handles a lot better in the wet". 30Gogani was arrested on 6 September 2011. Pettersen was arrested on 6 September 2011. He declined to be interviewed by police. Dunn was arrested on 12 September 2011. He declined to be interviewed. On 14 September 2011 O'Mealey was arrested. He likewise exercised his right to silence. I am informed at the moment this prisoner is the first of the offenders to be sentenced. Gogani is listed for committal for trial on 4 May 2011. Shawn O'Mealey has pleaded guilty, he is listed for mention in the District Court on 27 April 2012. Jack Dunn is listed for arraignment on 27 April 2012. 31The Crown has told me that there is no evidence of which he is aware, nor has Ms Duchen, nor has the prisoner, drawn to my attention any evidence amongst the recorded conversations of the prisoner claiming that the only reason he was involved in the commission of any of these offences was to repay a debt of $5,000 owed by a friend of his to a third party that the prisoner claims was threatening the prisoner and his family, and there is no evidence from his family assembled in court to that fact. Although the prisoner claims that he never told his family or his close associates of the debt, or the threats that were made. 32In that regard one must approach the prisoner's claims, both to the Probation and Parole Officer, to the psychologist and in this Court about his reasons for committing the offences, with considerable circumspection. They are unsupported by other evidence. No attempt has been made to produce evidence that might shed light upon the claim. Conveniently the person that the prisoner claims that he was assisting has fallen out with him, or the prisoner has fallen out with that person. It seems, I must say, on the face of it, highly unlikely that in the scheme of things, the urgency of the moment I assume occasioned by the threats, that the prisoner would have been involved with these two offences a couple of months apart if there were current threats being made. 33In any event I just cannot accept by reference to the second offence in time that the prisoner was planning only to take sufficient stolen property as to enable him to recover five or $6,000 to pay off the debt and was not seeking any personal benefit. Of course, I have already pointed to the absence of any evidence and any unguarded conversations which were recorded where the prisoner claimed that his motives were as altruistic as he claimed. It should be said that the prisoner was a most unimpressive witness and one would, as I have earlier said, by reason of his criminal history and the circumstances of the offending, approach the claims that he made with suspicion and circumspection. I accept, of course, from his evidence, that since he was released on parole he had complied with the parole requirements so far as reporting and the like. 34His counsel, who skilfully represented his interests, seemed to downplay the fact that the breach of his parole arose from serious offending such as I am concerned with. The facts of the matter are that one might take the view that his compliance with the requirements of the Probation and Parole Service were really a matter of paying lip service to the requirements of parole. It certainly is the case that I am dealing here with the fact he committed serious offences on parole, serious offences not days apart or minutes apart or hours apart, but weeks apart during a period that he was on parole. 35The Probation and Parole Service has prepared a report which has, it could be fairly said, some favourable observations about the prisoner, noting some disadvantage in his background but not striking disadvantage in his background. It observed that he had been in a stable relationship for five years. That stable relationship has not prevented him offending in serious respects. He has some history of drug usage but no drug usage is claimed as a reason for committing the current offences. He claimed that he was seeking to pay an outstanding debt of $5,000. Putting aside the fact that one has difficulty accepting the threats of which he claimed, the truth of the matter is he was prepared to commit these crimes for financial benefit and that is not denied by his counsel in her submissions. The Probation and Parole Service noted the prisoner admitted his guilt. But again the prisoner sought to take something of a confess and avoid approach to this offending. The Probation and Parole report states: "It is assessed that Mr Pettersen understands the lasting impact his crimes have had on his family and that he has developed strategies to assist him to maintain a pro social lifestyle. He presented as positive and focused on his future with his partner and has realistic goals for his reintegration back into the community." 36He is a person who needs assistance by the Probation and Parole Service to address his associates, his financial circumstances and employment. Although I note there is evidence available to the Court through a reference that there is employment available to him on his release in a plumbing business and as I said I give him credit for the fact that when previously released to parole he was able to maintain employment in various ways for a period of some fourteen months. 37In that regard, I have taken into account the evidence of his mother who not only spoke of his regular employment but the fact that she believed that he was travelling on parole, to use my words, had a settled relationship with his girlfriend having lived with her, that is, the mother, up until June 2011 when he moved in with his girlfriend, as I understood her evidence of which I obviously do not have a transcript. She also said that for a period of time he had no driver's licence and she had been driving him to TAFE while he undertook a welding course. I must say, as an aside without any criticism of the prisoner, the last thing that a person is prone to burglary should be doing is undertaking welding courses. In any event, I accept that he was undertaking the welding course for proper purposes and not sinister purposes. It is important, however, to come back to the detail of the prisoner's criminal history because it is of considerable significance in a range of ways in this matter and not just because the prisoner was subject to parole. 38The prisoner was born on 21 February 1982, thus, in relation to the matters with which I am concerned at relevant times, the prisoner, as I would understand the matter, was twenty-nine years of age. He is an experienced criminal, in fact to quote from the judgment of the Court of Appeal of R v Pettersen [2009] NSWCCA 91 an appeal by this prisoner against the severity of penalties imposed upon him, I note Justice Grove in giving the lead judgment of the Court and detailing the prisoner's convictions at paras 19 and 20 of that judgment, observed that at that point the prisoner "had accumulated a significant record of offending." It is worth repeating some of it. He started appearing in Court in the year 2000 when, as I would understand it, he was eighteen years of age. 39His first conviction for taking and driving a motor vehicle without the consent of the owner was on 14 August 2002 for which he was sentenced to three months imprisonment. On 27 June 2002 he was convicted in the Sydney District Court of breaking and entering and stealing for which he was sentenced to fourteen months imprisonment. Apparently a matter was taken into account on a Form 1. On the same date he was convicted of taking and driving a motor vehicle without the consent of the owner for which he was sentenced to ten months imprisonment. According to the record I have, that sentence was suspended pursuant to s 12 Crimes (Sentencing Procedure) Act. On the same date he was convicted of using an offensive weapon to prevent lawful apprehension and sentenced to ten months imprisonment commencing on 30 October 2001. On 13 August 2002 he was convicted in the Central Local Court, presumably whilst in custody in relation to the other matters, to terms of imprisonment in relation to driving a motor vehicle recklessly or in a manner dangerous to the public, damaging property and the like. 40On the same date he was convicted of larceny and having goods in custody said to have been stolen or unlawfully obtained. On 25 February 2003 he appeared at the Sydney District Court and was convicted of robbery whilst armed with an offensive weapon. He was sentenced to four years and six months imprisonment to commence on 29 May 2005 with a nonparole period of two years commencing on that date. A number of matters were taken into account on a Form 1 including common assault and damage of property. On another offence of committing robbery whilst armed with an offensive weapon he was sentenced to three years imprisonment to commence on 29 November 2002. On an offence of aggravated breaking and entering and commit serious indictable offence in company, an offence obviously very close in its terms to the offences with which I am concerned, he was sentenced to three years and six months imprisonment to commence on 29 May 2004 with a non-parole period of two years. He appealed against these penalties but abandoned his appeal. 41It was not long after those sentences had either expired, or certainly the nonparole period had expired, that the prisoner was charged with further offences. In fact, as I would understand the Probation and Parole Service report, although it is not of any great importance at this time, the matters for which he was sentenced at Parramatta District Court on 22 September 2008 were offences committed while subject to the parole that had been ordered by the Sydney District Court back in 2003. 42He was convicted on 22 September 2008 to terms of imprisonment, firstly, in relation to an offence of aggravated breaking and entering with intent to steal, I assume, in company, to a term of imprisonment of three years nine months with a non-parole period of two years. Those sentences were to commence on 22 July 2008. He was convicted of driving a vehicle in a manner dangerous to the public or recklessly or at a speed dangerous to the public to six months imprisonment. He appealed to the Court of Criminal Appeal and that judgment I have already noted. I have read the remarks of Justice Grove for the Court. 43I note a number of the matters that have been raised on this appeal were raised before Judge Ellis at Parramatta District Court back in 2008 and were considered by the Court of Criminal Appeal. I note, for example, that when sentenced by his Honour Judge Ellis on 22 September 2008 that the prisoner was serving, or had been required to serve, the balance of the revoked parole. I note that his Honour and, of course, the Court of Criminal Appeal, had to consider the terms of Callaghan v The Queen, to which I have made reference. I note the prisoner expressed contrition for his involvement in the offences. Of course the matter that came to the Court of Criminal Appeal was a Crown appeal against the inadequacy of the penalty imposed and I appreciate the Court dismissed the Crown appeal. I note the starting point of any sentence imposed in relation to the offence the subject of appeal was a term of five years imprisonment. There was some technical complaints dealt with by the Court that are of no moment, but as I have pointed out to the learned Crown Prosecutor, this Court is greatly assisted by having previous judgments relating to particular offenders or remarks on sentence for previous convictions in the District Court and the Supreme Court available to understand the case run on the current occasion in the context of what has gone before. 44A number of the matters that have been raised again on behalf of the prisoner were previously raised at least in 2008. I note from the Probation and Parole Service report that the prisoner has no custody infringements, his counsel submits that he is "institutionalised" to the extent that the records would reveal that he is to the extent that one could be "comfortable" in custody. I accept that submission put on behalf of the accused, and it is a matter I have taken into account in determining the nonparole period in the context of the terms of s 44 Crimes (Sentencing Procedure) Act. A psychological report has been tendered. It provides a detailed account of the prisoner's history which I have taken into account. He has had some setbacks in his upbringing but nothing that could be described as remarkable. In fact, very little was said in submissions about his background as informing this particular sentencing exercise, other than, of course, the extended periods of imprisonment that have previously been imposed. 45Of course, these psychological reports have been used time and time again for purposes that go beyond the expertise of the person writing the report. For example, learned counsel representing the accused, a very experienced practitioner in this Court, sought to submit that the accused by reason of the events occurring when previously in custody was suffering from some form of post traumatic stress disorder. My understanding of the report and my understanding of the qualifications of the reporter, who was not a medical practitioner but is a person with a Bachelor of Psychology with Honours and a Master of Psychology with Honours, is that the reporter is not qualified to make a "medical" diagnosis of the prisoner. Of course, the reporter is entitled, qualified and skilled enough to observe the clinical signs and report upon them and also qualified to interpret the results of tests that were administered. It must be fairly said that the reporter's coverage of the offences involves no critical analysis of the facts with other matters that a sentencing judge, for example, is required to take into account. 46I note in relation to the results of psychometric assessment that the depression, anxiety and stress scale was administered and his symptoms of "depression and anxiety" were on the "extremely severe range." It was said that: "The relatively high scores are largely consistent with his presentations and his reports of vacillating negative mood states, rumination about past stresses and in particular the outcomes of sentencing, negative self perceptions and features of anxious arousal." 47So far as the adult ADHD self report scale administered, it was concluded that the prisoner has difficulties with a limited range of items relating to poor sustained attention and behavioural animation. The results indicated that: "Despite some ongoing features of attention problems Neil does not meet symptom range or intensity characteristics which are consistent with a high likelihood of adult attention deficits." 48Another part of the scores obtained indicated that: "He may further experience particular difficulties with maintaining attention to relevant stimuli, restlessness and control of impulsive behaviours." 49The conclusion reached by the psychologist was that the objective testing revealed "severe levels of depression and anxiety and some moderate symptoms of stressor present." It said the scores were consistent with his presentation but also noted that the various symptoms of anxiety and distress are: "To some degree reactive to exposure to potentially post traumatic events while in custody such as the death of an inmate. As such it is likely that Neil's experience of symptoms would be elevated at present by his placement in remand and impending possibility of a custodial sentence." 50It noted that he suffered a severe level of "psychological distress" which would "likely meet criteria for diagnosis of co-morbid mood and anxiety disorder at present." 51Of course, as I pointed out to counsel for the offender, one might have thought, and it was conceded so in part as I understood the submissions, that much of this symptomatology may well be reactive to the circumstances of pending sentencing proceedings which will inevitably, as he would have understood, lead to a further period of time in custody. He has some tendencies towards distractibility, impulsivity, restlessness and high arousal levels but nothing that is significant to explain his involvement in the commission of the offences with which I am concerned. His intellectual capacity is broadly within normal limits. He does not have any diagnosed psychiatric illness and no mental disability is revealed as a causal influence upon his criminal behaviour. The report notes his institutionalisation. It reports without comment or analysis the offender's claims in relation to the involvement in these crimes, which I have already commented upon. It noted the offender's claimed intention to "minimise interaction with problem peers" so as to reduce his risk of offending behaviour. However, the facts reveal, as he revealed in his own evidence, that at least one of his co-offenders was a person that he met in prison. I do not accept as a fact that the offender's offending was "contextual to relatively isolated and unintended negotiations with the debtor peer and other antisocial parties." There can be no doubt on the facts presented to me that the offender was a willing party to the commission of these offences and in fact played a leading role, certainly a significant role, in the planning and execution or attempted execution of the crimes that were planned. 52I accept that the offender would benefit from counselling when in the wider community and I would not seek to second guess the analysis appearing at the bottom of p 10 of the report of the psychologist. The offender could no doubt well do with some counselling whilst in custody, but the extent to which that would be available is not clear on the evidence available to me. 53In sentencing the offender of course there are a large number of matters that I am required to take into account. Firstly, I am required to have regard to s 3A Crimes (Sentencing Procedure) Act and the various purposes of sentencing therein described. I accept there must be some attention to the rehabilitation or the promotion of the rehabilitation of the offender, but the character of this offending, the background of the offender reflect upon the fact that there is a need for weight to be given to both general and personal deterrence. The offender certainly has not been deterred from offending in a serious way by previous terms of imprisonment. These offences or the general character of these offences cause me to have regard to the guideline judgment, albeit now of some thirteen years of age, of R v Ponfield (1999) 48 NSWLR 327. I note of course in relation to what Grove J discussed in Ponfield the fact that the provisions of the Crimes (Sentencing Procedure) Act have considerably overtaken that guideline judgment. Many of the matters identified by his Honour as factors relevant to the assessment of the objective criminality of a particular crime have been absorbed into s 21A Crimes (Sentencing Procedure) Act. 54In regard to this matter, particularly the first offence in time, it has a standard non-parole period of five years. Of course I am sentencing the offender after a plea of guilty and I am sentencing the offender of course in the context of the decision of the High Court in Muldrock v R which reflected upon the judgment of the Court of Criminal appeal in R v Way (2004). It noted, amongst other things (between [16] and [29]) the fact that the fixing of a non-parole period is but one part of the larger task in passing appropriate sentence upon the particular offender, fixing the appropriate non-parole period is not to be treated as if it were the necessary starting point or the only important end point in framing a sentence to which Div 1A applies. I note of course amongst many other matters raised in Muldrock, and discussed in subsequent cases to which I will refer in a moment, that the High Court held that consideration of s 21A in the context of Pt 4 Div 1A requires an approach that is consistent with the approach to sentencing described by McHugh J in Markarian v R. The judge is required to identify all the factors that are relevant to the sentence, discuss their significance and then make a valued judgment as to what is the appropriate sentence given all the factors of the case. The standard non-parole period is a legislative guidepost together with the maximum sentence. The court is not required to undertaken a two stage approach to sentencing. 55In relation to this matter of course, noting some of the more recent judgments of the Court of Criminal Appeal post Muldrock, such as Zreika v R [2012] NSWCCA 44 and the like, that the offence described as the first offence in time could reasonably be regarded as an offence within the "mid range" as contemplated under Pt 4 Div 1A. It was submitted by learned counsel for the offender that it was below the mid range, but this was an offence that involved the planning that occurred, according to the facts available to me, over a period of time between 2 February 2011 and 20 March 2011. It involved the offender agreeing to commit the offence in company with others. It involved the recruitment of persons other than Mr Gogani. It involved the purchase of special equipment for the purposes of perpetrating the principal crime. It involved an agreement to commit a crime at commercial premises at night in circumstances where one would have expected that the intention was to steal valuable property and a considerable amount of valuable property having regard to the character of the vehicle that had been stolen to effect the purpose of the conspiracy. 56I appreciate of course, as Ms Duchen points out, that the actual principal crime, or the contemplated crime, was not completed. The commission of the crime was interrupted by the offender's realising that they were subject to police surveillance. But as I understand the matter, and I have heard no submission to the contrary and not being assisted any further, the offender has admitted to the offence of conspiracy to commit an aggravated breaking, entering and stealing. It is that crime that I am concerned with and I have to characterise that crime within the range of offences that constitute such a crime. The conspiracy clearly was of longstanding, and the offender's explanation for his involvement in it, even if accepted, which I do not accept, does not mitigate the objective seriousness of the offending behaviour. 57That having been said, I approach the matter as the High Court has decreed in Muldrock. The standard non-parole period is a guidepost but not the definitive determinate of what the appropriate non-parole period should be or what the total sentence should be but provides some assistance or guidance. In any event, I have concluded in relation to that offence, bearing in mind I am required, as the authorities make clear, to fix a non-parole period in relation to it, that there are special circumstances which require an adjustment of the relationship of the non-parole period to the balance of the sentence. 58With regard to the other offence which requires consideration of the matters on the Form 1, there is no need to categorise it in terms of Pt 4 Div 1A. But it is an offence with very similar characteristics to the previous offence in time with a lesser maximum. This was a planned crime where the offenders stole a vehicles to effect the crime. It was committed in company with a number of people. Damage was done to the premises to effect entry which was unsuccessful including smashing through the security gates and trying to force entry into the premises. The offenders were planning to break into commercial premises at night where it might be expected that a considerable amount of valuable property could be stolen, particularly telecommunications equipment which is readily capable of being sold illegally, provided people have access to SIM cards and the like. 59With regard to both offences considering the terms of s 21A and noting of course the general sentencing principles that are contemplated pursuant to s 21A(1), the specific aggravating factors that I find in relation to this matter affecting both offences with which I am concerned under s 21A(2), are that the offences were committed whilst the offender was subject to conditional liberty and that the offences were committed for financial gain. Of course every breaking, entering and stealing or similar offence, to be fair, would be committed one would have thought by and large for financial gain. Here the gain was potentially great, certainly greater than the normal offence at domestic premises. Likewise in relation to each offence, each offence was part of planned criminal activity beyond the normal planning or the planning that might not be seen as an aggravation in such offending. I have dealt with the issue of the extent of planning in relation to both offences by reference to the facts and other matters. 60In addition to those aggravating factors common to both offences, in respect of the principal offence, which requires consideration of the Form 1 matters, the damage caused to the premises of the business that was raided was substantial. Of course s 21A matters are not directly relevant to the matters on the Form 1, but I note that two of the motor vehicles were stolen or taken by the offender, both of which were used in relation to particular crimes, the subject of sentence, were themselves damaged by the offender. One had damage to the ignition and, as I have said earlier, one driven through the security gates must have suffered some damage, but I do not have precise particulars. In any event, I am not required to determine relevant "aggravating factors" arising under s 21A in relation to the matters on the Form 1. 61In relation to mitigating factors that arise in relation to the subject offences under s 21A(3), there is little that can be said. It might be fairly said in relation to the conspiracy matter that the loss or damage was not substantial, there was no loss or damage in fact, but otherwise the offender does have a significant record of previous convictions. He is not a person of good character. He is not a person who could be said to be unlikely to re-offend, and I could not conclude, given his past history and the circumstances that bring him here, that he has "good prospects of rehabilitation." Those mitigating matters expressed in subs (3) are not available to him. 62The offender has expressed remorse. He claims to have accepted responsibility for his actions, acknowledged the loss or damage. Taking into account that he has previously expressed remorse when sentenced in 2008 and has put the lie to that by his subsequent behaviour, one might be reasonably acting if one approached that claim of remorse with some circumspection. But for the purposes of these proceedings I am prepared to accept it as a "mitigating factor" in relation to the two offences with which I am concerned. 63The pleas of guilty in relation to each offence are mitigating factors. However, they also are matters for which he receives the benefit of a discount for the utilitarian value of the pleas of guilty. 64With regard to the issue of his prospects of rehabilitation, it was put to me that the offender is a person who is "at the cross roads" in the sense discussed in the well known decision of Osenkowski. This matter might be considered in the context of the decision of the Court of Criminal Appeal in R v Blackman and Walters (2001) NSWCCA 121. In that judgment Wood CJ at CL discussed the line of South Australian authority which he embraced dealing with issues concerned with the promotion of the rehabilitation of offenders and the like. Amongst the decisions he referred to were Kovacevic (2000) 111 A Crim R 131, Yardley and Betts (1979) 22 SASR 108 particularly at 112-3 in the judgment of King CJ and related authorities. Osenkowski contemplated a positive finding that a person is at the crossroads. This offender could not be at the cross roads at the moment. He might be heading in that direction. It is difficult to say. But the fact that he committed these offences at the age of twentynine whilst on parole, the fact that he expresses regret now and looks to a better future in the contemplation of release to parole does not, with all the other evidence, warrant a conclusion that he is at the crossroads. I appreciate, as was pointed out in Blackman and Walters that the protection of the community is contributed to by the successful rehabilitation of offenders. 65If a sentence had the effect of turning an offender towards a criminal way of life, the protection of the community is impaired. If a sentence induces or assists someone to avoid offending in the future, the protection of the community is to that extent enhanced. Of course, this prisoner has shown by his involvement in these offences that he has quite settled criminal habits that he usually resorts to when the need arises, even on his own version of events. I point out that Osenkowski was discussed by Wood CJ in Henry v The Queen, particularly in the context of the mitigating considerations that might arise in relation to drug addiction when dealing with armed robbers (at [273]). 66In any event, as the Crown correctly submitted this offender is not at the crossroads yet, it will be a matter for the Parole Authority, in due course, to determine if the prisoner is sufficiently placed at the crossroads to warrant any special consideration some time in the future. It follows from all that I have said thus far that I have had close regard to all the submissions that have been put by the prisoner and the learned counsel for the accused. The facts of the matter are as is acknowledged that a substantial term of imprisonment is to be imposed. I have earlier that I am prepared to make a finding of special circumstances. The special circumstances include the accumulation of sentences required upon the balance of parole and the imposition of one sentence in relation to another at this particular point of time. The prisoner because of his institutionalisation requires special assistance from the parole board to adjust to community living. It is to be fairly said that he showed no evidence to his mother of any difficulties adjusting to community living on the last occasion, but that need still remains. Although he no longer is under any drug addiction or drug dependency problem the truth of the matter is he will need professional assistance to avoid those temptations in the future and I accept that he needs an extended period of supervision for that. In my view, three years is an adequate period of time for that supervision. 67I have given these remarks today having heard the evidence and the submissions earlier today and then interposed another sentence matter which I have now completed. I gave some thought to delaying the sentence to further contemplate the matters that have been raised, but I believe that notwithstanding the absence of any transcript and notwithstanding the imposition of another matter in the meantime for me to deal with, I have had ample opportunity to reflect upon the matters that have been raised through the evidence and through the submissions. 68The Crown is correct to say that this is serious offending by an offender whose criminal history at the very least does not entitle him to any leniency, aggravated most significantly by the fact that he was on parole in relation to offending of a very similar character to the offending with which I am now concerned. 69In relation to the offence committed in May 2011 contrary to s 113(2), taking into account all the matters on the Form 1, I sentence you to a term of imprisonment of three years and nine months. This reflects a commencement of five years imprisonment with a discount of twenty-five percent. That sentence will date from 6 February 2012 and expire on 5 November 2016. In relation to taking into account the matters on the Form 1, I have had close regard to the Attorney General's Application Number 1 (2002) (2002 56 NSWLR 147), particularly the matters such as the fact that the matters to be taken into account on a Form 1 mean that greater weight should be given to the need for personal deterrence in the communities entitlement to extract retribution. The entire point of the process may be to impose a longer sentence, although alter the nature of the sentence that would have been imposed if the principal offence had stood alone, sometimes the additional penalty would be substantial, although the Court is not obliged to fix any particular extent to which the sentencing for the principal offence is affected by taking into account the matters on the Form 1. There are restrictions upon the extent to which the matters on the Form 1 can be taken into account in any event, such as the maximum penalty and the like as discussed in the guideline judgment. What is significant to hear about the Form 1 matters of course is that they are offences committed to facilitate the commission as I have outlined in the summary of the facts. The principal offence and other offending, they are not "quite slight" or "inconsequential" matters as was the case in the matter I dealt with earlier this afternoon. 70In relation to the offence committed in March 2011, this is the conspiracy to commit the offence of aggravated breaking entering and stealing, you are sentenced to a term of imprisonment by way of a nonparole period of three years. That non-parole period will commence on 6 May 2013 and will expire on my calculation on 5 May 2016. In relation to that sentence I fix a balance of sentence of three years imprisonment. In relation to that non-parole period that sentence reflects a finding of special circumstances, not just through the accumulation, but making some adjustment to extend the period of potential parole supervision to meet the matters that I have outlined. The commencement point of that sentence was eight years imprisonment. I have given you a discount of twenty-five per cent as I have earlier foreshadowed. 71The nonparole period of course does not allow me to direct that the prisoner be released to parole, it will be a matter for the parole authorities as to whether you are released at the expiration of that non-parole period. 72Now Mr Crown any technical matters from you? 73VAUTIN: No, I think that is correct. I will ask that a transcript be taken out for the remarks on sentence your Honour. 74HIS HONOUR: That will be done in due course, probably if you wish it, you just make an application but I will ask my Associate to request it the remarks on sentence be prepared. 75VAUTIN: Thank you your Honour. 76HIS HONOUR: Now my calculation of the sentence Mr Pettersen is that the non-parole period is effectively four years and three months. The balance of sentence on my calculation is three years imprisonment, which means a total sentence of seven years, three months imprisonment. That sentence commencing part way through the balance of parole to which I earlier referred. 77[Spellings cannot be checked as the file is not available] 78Judge Norrish