Ourdi v R

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 The Attorney General's Application under s 26 of the Criminal Procedure Act No 1: R v Ponfield and Ors [1999] NSWCCA 435; (1999) 48 NSWLR 327 R v Huynh [2005] NSWCCA 220 Marshall v Regina [2007] NSWCCA 24 R v Harris [2007] NSWCCA 130 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 CASES CITED : Assi v Regina [2006] NSWCCA 257 SA Police v John (1995) 79 A Crim R 510 Anna Le v Regina [2006] NSWCCA 136 Regina v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740 MLP v Regina [2006] NSWCCA 271; (2006) 164 A Crim R 93 Ma & Pham v Regina [2007] NSWCCA 240 Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284

PARTIES: Rachid Ourdi (Appl) Regina (Resp/Crown)

COUNSEL: R Burgess (Appl) P Miller (Resp/Crown)

SOLICITORS: S O'Connor - LAC (Appl) S Kavanagh (Resp/Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/5902

GROVE J BLANCH J KIRBY J

Tuesday 3 March 2009 Rachid OURDI v REGINA Judgment 1 GROVE J: I agree with Kirby J. 2 BLANCH J: I agree with Kirby J. 3 KIRBY J: On 17 May 2005, Rachid Ourdi (the applicant) was arrested and charged with five offences, which may be summarised as follows: Counts 1 & 2: Entry of a dwelling house with intent to commit a serious indictable offence (namely, stealing) in circumstances of aggravation, that is, knowing people were within the dwelling, contrary to s 111(2) Crimes Act 1900 ("the Act") (maximum penalty: 14 years imprisonment). Counts 3, 4 & 5: Breaking and entering a dwelling house and committing a serious indictable offence (namely, stealing) in circumstances of aggravation, that is, knowing people were there, contrary to s 112(2) of the Act (maximum penalty: 20 years imprisonment with a standard non parole period of 5 years). 4 After a little over three months, the applicant was granted conditional bail on 29 June 2005. On 18 September 2007 he was arraigned before Boulton DCJ and a jury. He pleaded not guilty to each charge. On 26 September 2007, after a short trial, the jury returned a verdict of guilty on each count. 5 On 7 December 2007, Boulton DCJ sentenced Mr Ourdi as follows: Counts 1 & 3: Imprisonment for a term of 7 years to commence from 15.8.07 comprised of a non parole period of 3 years to expire on 14.8.10 and a balance of term of 4 years to expire on 14.8.14. Count 4: Imprisonment for a term of 7 years to commence from 15.2.08 comprised of a non parole period of 3 years to expire on 14.2.11 and a balance of term of 4 years to expire on 14.2.15. Counts 2 & 5: Imprisonment for a term of 7 years to commence from 15.8.08 comprised of a non parole period of 3 years to expire on 14.8.11 and a balance of term of 4 years to expire on 14.8.15. 6 The aggregate sentence therefore involved a non parole period of 4 years, and an additional term of 4 years, a total sentence of 8 years. 7 Mr Ourdi seeks leave to appeal against that sentence. Before dealing with the grounds of appeal, I should describe the circumstances in which the offences were committed.

The offences. 8 The offences involved stealing from five home units within a 22 storey residential tower block at Bondi Junction. The block had elaborate security which the applicant penetrated. Quite apart from a 24 hour concierge in the main lobby, the following measures were taken, according to a summary of the facts tendered on sentence: (Facts p 1) "In order to access the residential premises, an electronic key is required to enter the main doors, past the concierge, through the lobby and on to the lifts. The lifts are operated by the same electronic key, each electronic key can only access the car park, pool level and the level that the resident lives on. The lifts are controlled by a centralised security computer to allow access and the foyer area is monitored by CCTV. An individual door key is required to open the main door lock, all units have also been fitted with deadbolts to secure the front door." 9 It was the Crown's case, accepted by the jury, that Mr Ourdi entered the building by climbing without shoes up the north eastern side of the building. The facts summary said this: (Facts p 1) "Some time before 5am, the offender took off his shoes and climbed up on the outside of the north eastern side of the building. He climbed up to level one, on top of a pergola onto the balcony of level two, where he has then climbed on the concrete pylon on the outside of the building accessing each level. (The first level he has accessed being level 3). The paint used in the construction of the tower leaves a powdery white residue on the hands when touched, this powder residue is very delicate and separates from the hand very easily. The markings from hands and feet can be seen on the balcony railings from level three (3) on the north eastern side of the building, going up every level to level nineteen (19)." 10 Only certain units were accessible from the north eastern side. Each of the offences concerned units on that side and property stolen from within each unit. An examination by police of the unit block after Mr Ourdi's arrest revealed powdery white marks on the railings of a number of units, and in some cases such marks on the balcony sliding doors. 11 Count 1 involved entry to a unit on level 4 through an open doorway leading to the balcony. The room adjacent to the balcony was a bedroom and the occupant was asleep. There was a desk next to the bed. Within the desk drawer there was a Rolex watch, a man's diamond ring and another watch, together valued at $60,000. The occupant recalled stirring as he thought someone was in the unit. However, he assumed it was his flatmate and went back to sleep. Days later he discovered that his property was missing. 12 Count 2 involved the unit on the floor above (level 5). Again, entry was gained through the open balcony door. The door gave access to the main bedroom, where a couple slept, a man and his pregnant wife. There was a bookshelf in the lounge room of the unit where the male occupant had left his wallet and the female her handbag. Cash and credit cards were stolen from each. 13 Count 3 was the more serious offence of aggravated break and enter with intent to commit a serious indictable offence. It concerned a unit five floors above on level 10. The unit was occupied by a couple and their two daughters. A mobile phone and credit cards were stolen. 14 Count 4 involved breaking and entering a unit on level 17. It was occupied by Mr and Mrs Foley, he being a director of a goldmining company listed on the US stock exchange. Within the unit there was a cabinet with four replica gold bars, used for demonstration purposes. Each weighed about five kilograms and was gold plated, the core being lead. Mr Foley was in the habit of waking at 4.00 am to check the value of gold on the US exchange. The statement of facts described what then happened in these words: (Facts p 3) "Shortly after going back to sleep, Mr Foley awoke, he saw a man standing in the doorway to his bedroom, looking at him and his wife asleep in their bed about a metre away. He saw the man reached out and picked up one of his replica gold bars located on the cabinet, then walked back out onto the balcony. Mr Foley woke his wife by gripping her on the thigh very hard. Sensing that something was wrong, Mrs Foley awoke, and was informed by Mr Foley that someone was in their unit. Mr and Mrs Foley then watched as the man returned and took hold of another replica gold bar from the cabinet, before heading back to the balcony. Once the man had left, they both leapt out of bed and ran to the front deadlocked door of the unit. Opening the door with their keys they then ran out of the unit downstairs to the reception area and raised the alarm by calling '000'." 15 Count 5 concerned the unit next door. The owner slept throughout. However, his wallet was moved and cash taken. 16 Mr and Mrs Foley gave evidence at the trial. They each gave a description of the person's build. Their description was consistent with that of the applicant. Mrs Foley, moreover, went downstairs and saw a person emerge from the fire escape into the grounds of the block. The door to the fire escape could only be opened from the inside. It appeared to be the same person she had seen upstairs in her unit. That person was then chased by the police who, by this time, had arrived at the units. He was seen to discard one of the "gold bars" and was ultimately arrested in Bondi Junction. When arrested, he was found to be in possession of the property and cash that various unit holders later identified as having been stolen from their units. 17 Mr Ourdi, when arrested, exercised his right of silence. A month or so later, however, he agreed to answer questions in a recorded interview. The interview, according to the sentencing Judge, was "riddled with demonstrable falsities and implausible explanations" (ROS 3). Ultimately, at trial, Mr Ourdi accepted that he was at the stairwell of the building. However, he said that he was there in order to receive goods stolen by someone else. He was not the thief. In the face of what his Honour described as an "overwhelming Crown case", the jury rejected that account. 18 In his remarks on sentence, his Honour found that there was planning, which is a matter of aggravation under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999. He said this: (ROS 6) "This was a planned criminal activity. The commission of these offences called for a degree of advanced observation and planning and, I might say, considerable daring and skill." 19 The offences under s 112(2), as mentioned, carried a standard non parole period of 5 years where it is determined that those offences are "in the middle of the range of objective seriousness" (s 54A(2) of the Crimes (Sentencing Procedure) Act). In that context, his Honour said this: (ROS 6) "The objective level of seriousness then of these offences is quite high. Certainly not at the top of the range, but in my view, above the mid-range of such offences."

Notice of Appeal. 20 The applicant identified four grounds of appeal, namely: Ground 1: His Honour erred in imposing the same sentence in relation to the offences under s 111(2) and s 112(2).

Ground 2: His Honour erred in his assessment of the objective seriousness of each of the offences.

Ground 3: His Honour failed to give the applicant adequate credit for the period of quasi custody.

Ground 4: The individual sentences and the effective sentence are manifestly excessive, taking into account the objective seriousness of the offences, including the applicant's motivation for committing them, his extraordinary subjective case, his prospects of rehabilitation and the period of quasi custody. 21 Ground 3 was not pressed. I will consider the remaining grounds in turn.

Ground 1: His Honour erred in imposing the same sentence in relation to the offences under s 111(2) and s 112(2). 22 Mr Ourdi received the same sentence in respect of each of the five counts (7 years imprisonment with a non parole period of 3 years), the sentences being partially accumulated, so that the total sentence was 8 years imprisonment with a non parole period of 4 years. The applicant drew attention to important differences between the various charges. Counts 1 and 2 were brought under s 111(2) of the Crimes Act, where the maximum penalty was 14 years imprisonment. Counts 3, 4 and 5 were brought under s 112(2) of the Act, where the penalty was 20 years imprisonment and there was a standard non parole period of 5 years. The more serious offence under s 112(2) required the Crown to prove, not simply that the premises were entered, but that they were broken into. The maximum penalty was a relevant point of reference in the sentencing process (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357). Error could therefore be inferred. The applicant, in submissions, said this: (AS p8) "Given the different elements of the two offences, the different maximum penalties and the fact that the standard non parole period did not apply to the s 111(2) offences, his Honour erred in not imposing a lesser sentence for the s 111(2) offences." 23 The Crown answered these submissions by suggesting that a shorter sentence under s 111(2) would have made no practical difference. His Honour was plainly aware of the maximum penalty, and referred to that difference in his remarks (ROS 4). He also identified the elements of each offence (ROS 1). The Crown speculated that his Honour probably accepted the submission by counsel then appearing for the applicant, during the sentencing submissions, which was as follows: (30.11.07: T13) "Other than someone opening and shutting a door as the purported 'break' in relation to the s 112(2) matters, there is absolutely no difference in these offences, for practical sentencing purposes in my submission." 24 Nonetheless, there is obvious force in the submission made by the applicant. The structure of the sentences does not appear to reflect the differences in the various charges. Before expressing a concluded view, I will examine the remaining grounds.

Ground 2: His Honour erred in his assessment of the objective seriousness of each of the offences. 25 The statute provided that, in respect of an offence under s 112(2), there was a standard non parole period. His Honour was therefore obliged by s 54A of the Crimes (Sentencing Procedure) Act to consider the objective seriousness of the offences in relation to a mid-range offence. He determined that the objective seriousness was "quite high", not at the top of the range, but above the mid-range of such offences (ROS 6). 26 The applicant submitted that his Honour's determination could not be justified. There was error in four respects: · First, his Honour failed to take account of the range of serious indictable offences that may be committed under this section and that larceny was at the bottom of that range. · Secondly, his Honour failed to take account of the applicant's motive in committing the offences, which significantly ameliorated his culpability. · Thirdly, his Honour took account of circumstances of aggravation which were not available. · Fourthly, his Honour took account of a number of irrelevant considerations. 27 Dealing with the first of these issues, s 112(2) is an aggravated form of the offence under s 112(1) which, relevantly, is in these terms: "112(1) A person who: (a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein ... " 28 The term "serious indictable offence" is defined by s 4 of the Crimes Act to mean "an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more". The expression therefore comprehended a diverse range of offending, including offences of violence. Here, the serious indictable offence was larceny, punishable by 5 years imprisonment. According to the applicant, his Honour, in determining whether the offence was mid-range or above or below, needed to have in mind the diverse range of indictable offences and larceny's position at the bottom of that range. 29 The applicant submitted that his Honour only had regard to offences of the same kind, that is offences of break enter and steal. He made reference to the matter of The Attorney General's Application under s 26 of the Criminal Procedure Act No 1: R v Ponfield and Ors [1999] NSWCCA 435; (1999) 48 NSWLR 327, where the Court of Criminal Appeal considered the provision of a guideline judgment for offences such as those committed by the applicant. His Honour, in his remarks, quoted a passage from the judgment of Grove J (with whom other members of the Court agreed) in that case where his Honour identified factors relevant to the seriousness of the offence. 30 Attention was drawn to R v Huynh [2005] NSWCCA 220, where Simpson J rejected a submission that, where the serious indictable offence was larceny, it must necessarily fall below the mid-range in terms of objective seriousness. Her Honour said this: "[27] The assessment of where the offence lies in the range of offences of its type is to be made by reference to all of the facts and circumstances of the offence, and to the range of offences of its kind which come before the court. One circumstance which is here of relevance in that assessment is the quantity and value of the property stolen. It is not to the point that the property was recovered. It was, in fact, stolen, before being recovered. The fact that the maximum penalty for stealing barely takes that offence into s 112(2) does not of itself determine where the offence lies in the scale of gravity of offences against s 112(2). Certainly, one might ordinarily expect that offences involving violence would be regarded as more serious than stealing. But that does not preclude a finding that an offence under s 112(2), where the 'serious indictable offence' is larceny, being classified as in the middle of the range." 31 In Marshall v Regina [2007] NSWCCA 24, Howie J (McClellan CJ at CL and Simpson J agreeing) referred to Simpson J's judgment in Huynh and added the following: "[37] Therefore, in determining whether the offence falls within the mid-range of seriousness, the court has to have regard to the nature of the offence committed in the premises, including its seriousness as against offences of its type generally. Where that offence is larceny, the guideline judgment in R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327 might assist in determining the relevant factors to be considered in the evaluation of the seriousness of the offence. So the type of premises entered, the nature and value of the property taken, and whether there is substantial damage to, or ransacking of, the contents of the premises will be relevant considerations." 32 The Crown, in response, acknowledged that in characterising the objective seriousness of the offence in relation to the mid-range, there were a number of matters that can be said to be relevant. One was that the section comprehended a diverse range of offences and another that larceny was one of the lesser indictable offences within that range (R v Harris [2007] NSWCCA 130 at [48]). According to the Crown, whilst his Honour made no reference to either aspect, that does not mean that he did not have them both in mind. 33 Dealing with these submissions, his Honour did not say that he would only consider break entering and stealing offences when determining objective seriousness in relation to a mid-range offence. Nor do I believe it should be inferred. His Honour identified the elements of the offence under s 112(2). He did not do so by adopting a shorthand description such as "break enter and steal". He referred to the element of "breaking in order to commit a serious indictable offence" (ROS 1). Since the serious indictable offence involved larceny, it was appropriate to refer to R v Ponfield (supra) for the reasons given by Howie J in Marshall v Regina (supra). No doubt, it was desirable that his Honour refer to each of the considerations which have been the subject of the applicant's submissions (that is, the diverse nature of serious indictable offences comprehended by s 112(2) and the position of larceny within that spectrum). However, I would not find error through having failed to do so unless it were not reasonably open to his Honour to make the finding which was made. Here, for the reasons given in the context of ground 4 below, I believe the finding ("above the mid-range") was open. 34 The second complaint concerned an alleged failure by the sentencing Judge to take account of the applicant's "pathological gambling" when addressing the objective seriousness of the offences. His Honour had taken that matter into account in the context of the applicant's subjective case. However, it was said that it had a wider relevance. It should have been part of the assessment of whether the offence could be characterised as above or below the mid-range (cf R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [86], per Wood CJ at CL (Spigelman CJ and Simpson J agreeing)). The applicant made the following submission: (App's Subs p 14) "[38] In the unusual circumstances of this case, there was a clear link between the applicant's background and his gambling addiction, which was causally connected to the commission of the offences. ... " 35 The submissions added these words: "[40] His Honour overlooked this significant matter when considering the objective gravity of the offence ... " 36 The Crown responded that gambling was rarely a matter of mitigation (R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346, per Spigelman CJ at [203]; Assi v Regina [2006] NSWCCA 257, per Howie J at [27]). The present case, according to the Crown, was not one of those rare cases. Further, there was no warrant for assuming that his Honour had not given the applicant's gambling due weight. The submission that it had been overlooked depended upon inference arising from the structure of his Honour's remarks. In that context, the Crown said this: (Crown Subs p 6) [23] ... Whilst his Honour's assessment of objective seriousness followed a recitation of the facts of the offending and that was in turn followed by a consideration of subjective matters which included references in the psychologist's report and the pre-sentence report to his gambling, that reasoning entails too strict an approach to his Honour's thinking process which led to his ultimate assessment. It does not follow that the motive did not affect his assessment of the objective seriousness of the offences." 37 In dealing with these submissions, let me first refer briefly to the authorities concerning the relevance of gambling. As a generality, and a matter of social policy, the authorities have markedly restricted the relevance of gambling in the assessment of the criminality of the offender. King CJ said this in SA Police v John (1995) 79 A Crim R 510: (at 511) "There is a degree of public scandal involved in the sight of a legal practitioner who abuses his trust for his own advantage going free. The learned magistrate attached considerable importance to the description of the respondent's gambling addiction as a disease. That is a description accorded to it by a psychiatrist who gave evidence, and I do not dispute its correctness, but the nature of that disease has to be truly understood. In fact, it was an addiction to the habit of gambling. This Court has said on many occasions that the security of the society depends upon the ability of people to resist temptation which arises out of addictions and other forms of human weakness." 38 His Honour added: (at 512) "This Court has said on many occasions, for instance, that addiction to drugs, or addiction to liquor cannot be regarded as a licence to commit crime, and that if persons who are addicted in that way succumb to the temptation to feed their addiction by crimes of dishonesty or any other form of crime, they must expect to answer for those crimes by experiencing the appropriate punishment. The appellant in the present case suffered the affliction in the end of being addicted to gambling. The addiction, no doubt, arose from a progressive failure to resist temptation to gamble excessively. But he was under no compulsion to take other people's money to feed that addiction." 39 In R v Henry (supra), Spigelman CJ (Wood CJ at CL and Simpson J agreeing) made the following comment in the guideline judgment on robbery, when considering the relevance of drug addiction and other addictions to the culpability of offenders: (at 385) "[202] There is no warrant, in my opinion, to assess a crime induced by a need for funds to feed a drug addiction, as being lower in the scale of moral culpability than other perceived requirements for money. [203] Counsel making these submissions was driven to accept the proposition that an addiction to gambling, with its attendant need for money, could similarly be the basis for a claim for mitigation. He went further and indicated that an elevated sex drive which also had a physiological basis, could be a mitigating factor for the commission of a rape or for the conduct of a paedophile. In my opinion all these submissions should be rejected." 40 More recently in Anna Le v Regina [2006] NSWCCA 136, Latham J (McColl JA agreeing) said this in the context of the importation of heroin: "[32] ... Whether that explanation be the offender's vulnerability arising out of a drug addiction, or a gambling addiction, it generally does not warrant the extension of leniency. ... " 41 In Assi v Regina (supra) Howie J (the other members of the Court agreeing) expressed the principle in these terms: "[27] ... Although his gambling habit may explain his fall into such serious criminal conduct and give some hope of rehabilitation in the future, it has been held to be a rare case where an offender can seek mitigation of penalty based upon an addiction to gambling, even where it is pathological: R v Molesworth [1999] NSWCCA 43. ... " 42 So there is a rule (where addiction does not operate to mitigate the offence) and there are rare exceptions. Wood CJ at CL provided insight into the exceptions in R v Henry (supra), when he said this in the context of drug addiction: "[273] In my view the relevant principles are as follows: (a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation; (b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as: (i) the impulsivity of the offence and the extent of any planning for it: cf R v Bouchard (1996) 84 A Crim R 499 at 501-502 and R v Nolan (Victorian Supreme Court, Court of Appeal, 2 December 1998, unreported); (ii) the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism; (iii) the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act; ... " 43 Here the evidence concerning the applicant's addiction came substantially from the Probation and Parole Report and a psychologist's report. The Probation and Parole Report included the following: "Shortly after his arrival in Australia, Mr Ourdi received a large poker machine payout and his ex-guardian advised that this appears to have had a negative impact on him. She related that she was aware that, on a previous occasion, Mr Ourdi had attempted to retrieve money from a poker machine in which he had earlier lost money. She indicated that the offender often displayed this type of naivety. She added that, after his arrest on the current matters, it was discovered that he had made two relatively large withdrawals from an automatic teller machine at Star City Casino in Sydney and it appears that he had hidden his gambling from his wife and his guardian's family. Mr Ourdi acknowledged that his family were unaware of his gambling. Mr Ourdi admitted to having a gambling problem and that he became involved in this offence to fund his gambling. He said that it did not matter if he won or lost, it was like something was missing when he was not gambling." 44 The psychologist, whose report was tendered during the sentencing proceedings, considered that Mr Ourdi's preoccupation with gambling and his difficulty in controlling the urge to gamble, came within the definition of "pathological gambling". He said this: (p 6) "Mr Ourdi reported symptoms consistent with pathological gambling. The American Psychiatric Association (APA) (2000) describe pathological gambling as 'persistent and recurrent maladaptive gambling behaviour that disrupts personal, family or vocational pursuits'. It is noted that individuals with pathological gambling symptoms can take greater risks to acquire financial resources for gambling, and may resort to anti-social behaviour to obtain money (APA, 2000). The course of the disorder is typically chronic. In interview, Mr Ourdi expressed a willingness to enter into specific counselling and treatment for his gambling problem." 45 Mr Ourdi's gambling does not, in my view, come within the exception. He withdrew funds from his bank account. He then lost those funds gambling. At some later point he went out and committed crimes to obtain money. His crimes were not impulsive. On the contrary, they involved careful observation and planning. They were executed skilfully, with a clear head, as he scaled a 22 storey tower block. 46 There is, moreover, force in the Crown's submission that it cannot be assumed that his Honour failed to take account of Mr Ourdi's gambling in making his assessment of the objective seriousness of his crimes. Although he dealt with the issue in the broad context of the applicant's subjective case, his Honour used the following words, when referring to the pre-sentence report and that of the psychologist: (ROS 9) "Reference is made in both to a gambling problem which lies behind his offending behaviour." 47 These words may suggest that, with some charity, his Honour regarded Mr Ourdi's gambling problem as within the rare exception. But whether that be right or wrong, I would not find error on this material. 48 Moving to the third complaint, relevant to his Honour's assessment of the objective seriousness of the offences, two issues were identified in the context of his Honour's discussion of circumstances of aggravation. The first was that his Honour said nothing which suggested that he took into account the diverse nature of circumstances of aggravation, as defined by s 105A(1) of the Crimes Act 1900 (and the relative seriousness of para (f)) within that range). The circumstances under s 105A(1) included that the offender was armed with an offensive weapon (para (a)), that the offence was committed in company (para (b)), that the offender used violence (para (c)) and other matters more serious, it was suggested, than the circumstance relied upon by the Crown (para (f)) (ie that the offender knew that a person was in the place where the offence was committed). 49 The second issue related to the circumstances identified by his Honour as matters of aggravation. His Honour accepted that the offence was "a planned criminal activity" (s 21A(2)(n) Crimes (Sentencing Procedure) Act). He also accepted, without discussion, that s 21A(2)(m) operated as a circumstance of aggravation, namely, that the offences involved multiple victims. The applicant asserted that was an error for the reasons given by Howie J (Grove and Hall JJ agreeing) in Regina v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740, where the following was said: "[28] His Honour was also in error in taking into account as an aggravating feature s 21A(2)(m) 'the offence involved multiple victims or a series of criminal acts'. Clearly there were multiple offences before the court and they indicated that there were multiple victims and a series of criminal acts. But the applicant was going to be sentenced for each of those offences and the fact that there were multiple victims and multiple acts of criminality would be addressed by the sentences to be imposed for each of those offences in accordance with the principle of totality. With respect it is illogical to take into account, where there are multiple offences charged, that it is an aggravating factor relevant to each offence that there is a series of criminal acts disclosed by the offences before the court. [29] Clearly the aggravating factor in s 21A(2)(m) is concerned with the situation where a single offence contains a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct. A charge of this nature will be frequently found in cases of fraud or dishonesty perpetrated against a single victim such as a charge of embezzlement or larceny as a servant. It is also common to charge multiple instances of supplying drugs over a lengthy period of time as one offence under s 25 of the Drug Misuse and Trafficking Act. Of course there are offences that have, as an element of the offence, multiple acts of criminality, such as an offence of ongoing drug supply under s 25A of the Drug Misuse and Trafficking Act or an offence of persistent sexual abuse of a child under s 66EA of the Crimes Act . When sentencing for such an offence, the court must bear in mind the prohibition against taking into account as a matter of aggravation that such is an element of the offence charged." 50 The Crown responded that, while some circumstances of aggravation appeared, prima facie, to be less serious than others, it was necessary to look at what actually happened and what the offender did (Marshall v Regina (supra), per Howie J at [38]). The Crown further submitted that counsel then appearing for Mr Ourdi agreed with the Crown that s 21A(2)(m) had application (T 9), so that there was no error. 51 Dealing with these submissions, the first argument is similar to that advanced in the context of the diverse nature of serious indictable offences comprehended by s 112(2) (supra [31]). My view on this aspect is the same as expressed in the earlier context. One may assume that his Honour was aware of the broad nature of circumstances of aggravation in s 105A. The issue is whether he had those matters in mind when determining the objective seriousness of the particular offence and its place in relation to the mid-range. It was desirable that his Honour advert to that issue to demonstrate that he did have that matter in mind. Again, I would not find error through having failed to mention it, unless it were not reasonably open to make the finding which was in fact made. 52 I agree that, in assessing the objective seriousness of the offences, the sentencing Judge must ultimately look at what actually happened. Someone may be armed with an offensive weapon and force entry into an apartment where nobody is home and later be apprehended by a security guard as he is leaving with stolen property. The danger to members in the community in such circumstances is perhaps less than entry, unarmed, into an apartment where it is known that people are in occupation and asleep. 53 That said, I believe there was error in treating as a matter of aggravation (s 21A(2)(m)), that there were multiple victims, for the reasons identified by Howie J in R v Tadrosse (supra). The Crown, by way of rejoinder, said that there was a compensating error in favour of the applicant, in that his Honour determined that the victims were not vulnerable (s 21A(2)(l)), when in fact they were. It may be inferred he knew they were asleep. The applicant responded that his Honour had not found they were vulnerable and that was the end of the matter. Whilst that may be so, the issue nonetheless arises under s 6(3) of the Criminal Appeal Act 1912 whether, in those circumstances, some other sentence is warranted in law. Here the offences occurred in a residential tower block after 4.00am and before dawn. They occurred when it may be inferred that the residents were asleep and therefore vulnerable. However, I will postpone the s 6(3) issue until I have considered the last ground (Ground 4) below. 54 I come finally to the complaint that, in determining that the offences were "above the mid-range", his Honour took into account irrelevant considerations. Three were identified. The first may be quickly dismissed. His Honour described one of the occupants as a "retired solicitor". His description was accurate. There was no basis for thinking that it influenced his Honour's determination in any way. 55 The second matter concerns the charges under s 111(2) of the Crimes Act, counts 1 and 2. The Crown was obliged to prove an intent to steal. The fact that goods were stolen was relevant to proving that intent. However, the value of the items stolen was, according to the applicant, irrelevant to an assessment of the objective gravity of the offence. The Crown responded as follows: (p 7) "[32] The theft of the watch and its value were relevant. It increased the impact on the victim. It shows that his intent to steal encompassed items of value. It was not an element of the offence but it showed that he in fact carried out his intent. This showed the seriousness of his intent. The fact of theft did not offend De Simoni and did not have to be ignored. Indeed it could not be ignored as it showed the true extent of his conduct." 56 I accept that submission. There was no error. 57 The final matter was that his Honour, according to the applicant, took into account that the two imitation gold bars would, if genuine, have been worth about $500,000 each, as set out in the statement of facts. The Crown responded that the applicant plainly believed that they had significant value, although he would not have been aware of their precise value. 58 Again, I accept the Crown's argument. There was, incidentally, no objection to the statement of facts. The applicant clearly believed that the "gold bars" were valuable. He went back a second time to obtain another. He carried them out of the building. He only threw them away when he was in danger of being caught. There was no error. 59 The end result is that there was error on one aspect (s 21A(2)(m)): (multiple victims). There were also a number of issues which are best dealt with in the context of Ground 4, to which I now turn.

Ground 4: The sentence was manifestly excessive. 60 The applicant was born in October 1980 in the Western Sahara. His homeland was at war and occupied by Morocco. His father was killed when he was four or five years old. He recalled him being laid out for his funeral. He had no recollection of his mother. His early life was spent in circumstances which his Honour accepted were "absolutely appalling" (ROS 8). He lived a nomadic life with his kinsmen, which involved extreme hardship, poverty, hunger and mistreatment. He had no formal education and was illiterate in his native language, Arabic. 61 At the age of approximately 12 years, Mr Ourdi stowed away on a boat bound for Spain. He spent the years that followed in Spain, Italy and France where he lived on the streets. Whilst in France he was placed in an institution, awaiting deportation to North Africa when he "came of age". Before that time, however, he managed to leave the institution and stowed away on a container ship bound for Australia. 62 One gathers that his presence on the container ship became known and that, once in Melbourne, he was transferred to the Villawood Detention Centre. He was then aged 14 or 15 years. He remained in custody for approximately six months. He was referred to a refugee lawyer, Ms Jill Vidler, who obtained a Protection Visa on his behalf. However, he could not be released in the absence of appropriate accommodation and supervision. Ms Vidler, in these circumstances, with what his Honour described as "unstinting kindness", offered to act as his guardian. She took him into her family. 63 Mr Ourdi thereafter, until the age of 18, lived in Ms Vidler's home and was accepted as "a brother" by her children. Her children provided references to his Honour. There were significant problems of adjustment, quite apart from his inability to speak English. Mr Ourdi had been traumatised by his childhood experiences and suffered from nightmares and problems of emotional adjustment. 64 Arrangements were made for Mr Ourdi to attend a local school to learn English. He did so for approximately one year. He is said to have demonstrated a good work ethic. Having left the school, he performed a variety of labouring jobs. Ultimately he was employed as an auto-electrician. References were provided by his employers. He was highly regarded. At the age of 18 he left home and lived in his own residence. 65 Mr Ourdi had a number of criminal convictions, although they were described by his Honour as "minor" (ROS 8). He was convicted of offences of dishonesty in 1999 and entered into a recognisance to be of good behaviour. On a number of occasions he was fined for driving whilst disqualified. 66 In 2001, Mr Ourdi was granted Australian citizenship. He returned to Morocco the same year and later married the daughter of a friend he had made in the Western Sahara. He returned to Australia with his wife. She later became pregnant and was expecting their child at the time he was arrested in May 2005. It was reported that she was shocked since neither she, nor Ms Vidler his former guardian, was aware of his gambling. His wife gave birth to a daughter in September 2005. Mr Ourdi was granted bail before the birth and thereafter complied with the bail conditions, which were relaxed after a number of months. Ms Vidler described the profound effect upon him through the birth of his daughter. She gave the following evidence: (30.11.07, T 7) "A. I think he has finally begun to take responsibility for his own actions and the effect that his actions have had on other people. I mean we were like an adopted family and not one from the same cultural background, whereas his wife - and she didn't have a child at the time, but his wife does come from - speaks the same - speaks Arabic and they have a very good relationship and he realised that he was at risk of losing everything that was most precious to him. It just made him admit to what he'd done, to not be angry about everything, to realise he had to get through it, which is why he's dealt with gaol quite well." 67 Once Mr Ourdi was sentenced, Ms Vidler, again heroically, took Mr Ourdi's wife and baby daughter into her home, where they remain pending his release. 68 Reference has previously been made to the report of the psychologist, Mr Anasson, and his opinion that the applicant had symptoms consistent with pathological gambling. He also had other emotional problems, the consequence of his harsh childhood and early life. Mr Anasson said this: (p 8) "Mr Ourdi does have significant underlying psychological and emotional problems stemming from his formative years which remain unresolved. It is likely that these factors have, in part, contributed to him developing problematic gambling habits and making poor choices which have ultimately resulted in his current offences." 69 Mr Anasson believed that specific counselling and treatment for his addiction would assist him. 70 His Honour accepted that the applicant's young wife and daughter were likely to have a profound stabilising effect upon his future life (ROS 10). His Honour added: (ROS 10) "I have already mentioned that Miss Vidler and her family are ready to continue to support the prisoner and his family. This quite remarkable woman has taken in the prisoner's wife and child on his incarceration. Her continuing support affords him quite a good chance of rehabilitation when he comes out of custody." 71 His Honour found that there were special circumstances. The only negative finding made, in terms of the applicant's future, concerned the absence of remorse (ROS 4). Mr Ourdi continued to deny his guilt. The Probation and Parole Service said that he continued to minimise his role in the offence (ROS 4). His Honour, in this context, said this: (ROS 4) " ... A persistence in this attitude in the face of the jury verdict does not, in my view, bode well for the necessary changes that are required to this prisoner's lifestyle and attitudes." 72 The applicant, in the context of Ground 4, repeated the argument used in respect of Ground 1, that the imposition of the same sentence (7 years) in respect of offences which were markedly different (s 111(2) and s 112(2)) suggested error. Further, the applicant's "extraordinary subjective case" had not been adequately reflected in the effective total sentence. It was suggested his Honour may only have had regard to the subjective case when determining the issue of special circumstances. It was submitted that, looking at the sentence as a whole, the Court should infer that his Honour had, inappropriately, not taken the subjective case into account in determining whether there were reasons for departing from the standard non parole period (cf MLP v Regina [2006] NSWCCA 271 at [33]; (2006) 164 A Crim R 93). 73 It was acknowledged by the applicant that it was open to his Honour to partially accumulate the sentences. However, the statistics from the Judicial Commission demonstrated that the sentences for the s 111(2) offences were outside the range and the sentences for the s 112(2) offences were towards the top of the range. 74 Responding to these arguments, the Crown acknowledged that his Honour had accepted the applicant's background as "extraordinary". He had made a number of favourable findings, including that he had good prospects of rehabilitation. At the same time he plainly had reservations and expressed caution. He noted the absence of remorse and the need to address the problem of gambling. 75 The statistics were, according to the Crown, ultimately of limited value. The upper limit of the sentencing discretion was the maximum penalty, which was 14 years for the s 111(2) offences and 20 years for the charges under s 112(2). In Ma & Pham v Regina [2007] NSWCCA 240, Hulme J made the following observation: "[91] Subliminal in the reference to the statistics and the observation that the sentences here fall into the highest end of the range is the proposition that that is indicative of error. The proposition must be rejected. As this Court has said on many occasions, the range extends to the maximum penalty set by Parliament and it is against that that an offender's conduct must be primarily judged. Certainly, the statistics may at times inspire further reflection on the sentence in a particular case and perhaps give some limited guidance but, of themselves, they do not demonstrate error. Particularly is this so because, within each category, they provide no detail of the cases reflected in them." 76 Attention was drawn to the fact that the sentences in respect of the s 111(2) offences were totally concurrent and therefore had no practical impact upon the length of the sentence. 77 Dealing with these arguments, Mr Ourdi pleaded not guilty to each charge. He went to trial and was found guilty on each count. The standard non parole period under s 112(2) of 5 years had application, subject to his Honour's determination of the objective seriousness of the offence in comparison to a mid-range offence. That determination obliged his Honour to consider a number of issues, as set out in MLP v R (supra). In broad terms, he was obliged to evaluate the objective seriousness of the offences (including the applicant's state of mind) and to adjust his assessment (whether up or down) by reference to the subjective case and his determination of whether there were special circumstances. 78 Here, his Honour determined that the objective seriousness of each offence was above the mid-range, suggesting (at that point of the evaluation) a non parole period of more than 5 years. He then addressed the other issues and fixed a non parole period of 3 years. Taking account of totality, he determined an aggregate non parole period of 4 years with a total sentence of 8 years. A number of issues arise. Was it open to his Honour to view the objective seriousness of the offences under s 112(2) as being above the mid-range? If it was, were the determinations that followed within the sentencing discretion that he had? 79 I believe it was open to his Honour to characterise these offences as above the mid-range. The applicant's target was a high security 22 storey apartment block in the eastern suburbs of Sydney. His Honour inferred that careful observation and planning had been undertaken to penetrate the security system. Mr Ourdi entered the building in the very early hours of the morning under cover of darkness, at a time when the occupants could be expected to be asleep. He audaciously scaled the exterior of the building, moving from floor to floor, rising as high as the twentieth floor. He entered a number of apartments and broke into others. Once inside an apartment, he silently went in search of cash and valuables. In one apartment he searched through the bedside drawer, removing jewellery whilst the occupant lay asleep on the bed alongside. He ultimately entered the apartment of Mr and Mrs Foley on level 17 and silently moved around that apartment in the dark, watched by Mr and Mrs Foley, who were awake. It was, as his Honour said, a "heart stopping experience". Having obtained two gold bars, he then moved from the balcony to the apartment next door where he continued his harvest of valuables. 80 This was not an impulsive act. It was not a smash and grab raid, over in a minute. It was a bold plan, well thought out and skilfully executed over a significant period of time. But for the chance that Mr Foley was awake, Mr Ourdi may have escaped. In fairness, it should be noted that the property was ultimately recovered. Most of the residents were oblivious to his presence, and discovered that property had been stolen shortly after. Nonetheless, these were daring crimes, planned, professional, and committed one after another. Paying attention to the diverse crimes comprehended by s 112(2) and the different circumstances of aggravation available under s 105A, I believe it was open to his Honour to regard these crimes as above the mid-range. 81 Given that finding, a substantial adjustment was then made after consideration of the subjective case and the issue of special circumstances (reducing the standard non parole period from 5 years to 3). I believe the sentence, overall, was within range. 82 Although it must be acknowledged that the sentences under s 111(2) are more than one would expect, given the sentences imposed under s 112(2), they were, as the Crown points out, wholly concurrent. They did not add to the sentence overall. I do not believe it is necessary, in these circumstances, to restructure this aspect of the sentence.

The issues under s 6(3) of the Criminal Appeal Act . 83 Error has been found in respect of one aspect of Ground 2. The issue therefore arises under s 6(3) of the Criminal Appeal Act, whether some other sentence is warranted in law and should have been passed. On that question the applicant is entitled to ask the Court to examine, not simply the material relating to his offence and his subjective case (canvassed in the context of Ground 4), but affidavit material describing what has happened since the sentence was imposed (Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 at [124], per Johnson J (McClellan CJ at CL and Adams J agreeing) and Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284, per Spigelman CJ at [1]-[19] and Kirby J at [62]). 84 Here there were a number of affidavits. Mr Ourdi has been in custody since 7 December 2007, when he was sentenced. On 16 January 2008, he was classified as suitable for minimum security within the Silverwater Correctional Centre. Four days later, on 20 January 2008, he endeavoured to escape. According to a statement of facts relied upon by the police in respect of charges which have now been laid, Mr Ourdi got over the inner fence line but became stuck, receiving numerous lacerations to his head on the razor wire. He was transferred to hospital. After his recovery, he was taken to the Lithgow Correctional Centre, where he remains. For a time, he was there placed in a maximum security cell. 85 Mr Ourdi described the circumstances which led to his attempted escape in his affidavit in these words: (Affidavit 4.2.09) "6. On Saturday 19 January 2008 my wife and daughter visited me. My daughter was sick. After the visit I began to stress about too many things. So much was going on in my head. I needed to talk to my wife. I was worried about my daughter and I was worried my wife might leave me. Usually my wife visits both Saturday and Sunday but that weekend some friends had booked to see me on Sunday so my wife could not. I needed to speak to her but I had no money in my phone account and couldn't put anything in it until Monday. All these things were going on in my head all night. I was very stressed and depressed and then on Sunday morning without any real thought about what I was going I ran out and attempted to climb the fence. I was cut all over and there was blood everywhere. I walked back into the wing and was taken to hospital." 86 The charges against Mr Ourdi have yet to be dealt with. 87 It is also apparent from Mr Ourdi's affidavit that he has furthered his education whilst in gaol and undertaken a number of courses. He has also been examined by a psychiatrist, Dr William E Lucas, whose report was tendered. Dr Lucas described the applicant's background, his nightmares, anxiety and depression. He diagnosed chronic post traumatic stress disorder (PTSD). He reaffirmed, nonetheless, the impression which the sentencing Judge had that Mr Ourdi's prospects of rehabilitation were good. He said this: (p 9) "It is clear that he has made considerable progress over the years and I believe he has the capacity to once again settle in the community, work and maintain his family. ... " 88 Dealing with this material, the attempted escape has no specific relevance to the s 6(3) issues, apart from reaffirming, perhaps, the importance of Mr Ourdi's wife and child to his rehabilitation. The additional material, including the report of Dr Lucas, simply reinforce the impression which the sentencing Judge had that Mr Ourdi's prospects of rehabilitation remain good. 89 However, taking account of this material and the applicant's very strong subjective case, the offences remain very serious. I do not believe some other sentence is warranted in law and should have been passed.

Orders. 90 The orders I therefore propose are as follows:

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