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.