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District Court 9 March 2007

R v Nareg Mouradian

[2007] NSWDC 114

Theft & propertyPublic order & justice offences
CRIMINAL LAW CONVICTION APPEAL FROM LOCAL COURT MALICIOUS DAMAGE

Citation: R v Nareg Mouradian [2007] NSWDC 114
Court: District Court of New South Wales
Date: 9 March 2007
Judge(s): Nicholson SC DCJ

Background

The appellant had worked as a loss prevention officer for a large department store at Bondi Junction for over six and a half years. In mid-2004 he was assessed as suffering work-related stress and returned to work on modified duties. On the night of 27 July 2004, four cash registers at the store were prised open and their cash floats stolen, a roof-mounted security camera was taken, and the perpetrator exited via a fire escape door.

The appellant was charged with four counts of malicious damage to cash registers, one count of larceny of the camera, and one count of breaking out of a building after committing a serious indictable offence. A magistrate in the Local Court convicted him of all five offences and imposed custodial sentences. The appellant appealed to the District Court against both conviction and sentence.

The appellant's defence was that he had returned to the store to use a toilet after drinking vodka on top of prescribed medication, became dazed and confused due to the interaction of alcohol and medication, and fell asleep before wandering the building in that confused state without committing any offences.

  • Whether the prosecution had proved beyond reasonable doubt that the appellant was the person who damaged the cash registers, stole their contents, stole the security camera, and broke out of the building.
  • Whether the conviction appeals against all five offences should be dismissed or upheld on a rehearing of the evidence.
  • Whether the sentences imposed by the Local Court, particularly the 18-month term for breaking out, were appropriate.

Decision

The District Court conducted a full rehearing on the transcripts and exhibits from the Local Court. The court found the cases against the appellant were circumstantial, but rejected his account of being dazed and confused. Video footage from the night showed him moving purposefully and steadily, inconsistent with impairment by alcohol or medication. One image showed him carrying what appeared to be a long, thin object consistent with a tool used to prise open the registers, which the appellant explained as a fixture he had tripped over but then could not account for further in his evidence.

The court drew an adverse inference from the appellant's failure to account for his movements in a consistent manner. His explanation shifted between claiming a dazed state in the risk manager's interview and demonstrating a clearer recollection in sworn evidence. The court found his remarks to the risk manager, expressing resentment and disenchantment toward his employer, provided a plausible motive.

The court was satisfied beyond reasonable doubt that the appellant disconnected and stole the security camera, and that the same person who stole the camera was responsible for the malicious damage to the cash registers and the theft of their contents. The court therefore dismissed all five conviction appeals and confirmed the convictions.

On sentence, the court confirmed the six-month terms for the malicious damage offences but quashed the 18-month term for breaking out, substituting a nine-month term. All sentences were suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, conditional on the appellant entering good behaviour bonds.

Orders Made

  • All five conviction appeals dismissed and convictions confirmed.
  • Six-month sentences for each malicious damage offence confirmed but suspended, conditional on entry into good behaviour bonds of six months' duration.
  • Eighteen-month sentence for breaking out having committed a serious indictable offence quashed; nine-month sentence substituted and likewise suspended, conditional on entry into a good behaviour bond of nine months.
  • All bonds to run from the date of judgment (9 March 2007).

Key Takeaways

  • In dismissing the conviction appeals, the District Court applied the standard that the prosecution must prove each element of each offence beyond a reasonable doubt, conducting a full rehearing on the written record rather than simply reviewing the magistrate's findings.
  • Circumstantial evidence, including video footage, inconsistent post-offence statements, and evidence of motive, can collectively satisfy the beyond reasonable doubt standard even where no witness directly observed the offending.
  • A defendant's account of impairment can be weighed against objective evidence such as surveillance footage; where footage shows purposeful, steady movement, a court may reject a claim of dazed or confused behaviour.
  • Inconsistencies between a defendant's statements to an employer's investigator and their sworn evidence in court are a legitimate basis for assessing the credibility of the defence account.
  • Under s 12 of the Crimes (Sentencing Procedure) Act 1999, a court may suspend a term of imprisonment and impose a good behaviour bond in lieu of full-time custody, as occurred here with all confirmed sentences.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (power to suspend sentences and impose good behaviour bonds)

Cases:
- No cases were cited in the judgment text provided.