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Court of Criminal Appeal 3 March 2009

Ourdi v R

[2009] NSWCCA 46

Also reported as 193 A Crim R 46
Theft & property
CRIMINAL LAW STANDARD NON PAROLE PERIOD OFFENCES WHETHER ABOVE THE MID RANGE CAT BURGLAR MOVING THROUGH HIGH RISE GAMBLING

Citation: Ourdi v R [2009] NSWCCA 46
Court: New South Wales Court of Criminal Appeal
Date: 3 March 2009
Judge(s): Grove J, Blanch J, Kirby J (Kirby J delivering the principal judgment)

Background

The appellant was convicted after a jury trial of five offences involving the theft of property from home units within a 22-storey residential tower at Bondi Junction. His method was striking: he removed his shoes and scaled the exterior of the building, climbing from level two to as high as level nineteen and accessing units through open balcony doors. The building had elaborate electronic security, including keycard-controlled lifts and a 24-hour concierge, all of which the appellant bypassed entirely by climbing the outside of the structure.

The five counts included two charges of entering a dwelling with intent to steal in circumstances of aggravation (knowing persons were present, contrary to s 111(2) of the Crimes Act 1900) and three charges of breaking and entering and committing a serious indictable offence in circumstances of aggravation (contrary to s 112(2)). Victims included a sleeping pregnant woman, a family with two daughters, and a couple who were awake and watched the intruder take items from beside their bed.

The District Court sentenced the appellant to an aggregate of eight years' imprisonment, comprising a non-parole period of four years and a balance of term of four years. The appellant sought leave to appeal, contending the sentences were manifestly excessive given his subjective circumstances.

  • Whether the sentencing judge correctly placed the offences above the mid-range of objective seriousness, particularly having regard to the diverse range of conduct captured by s 112(2)
  • Whether the appellant's gambling problem was a mitigating factor that should have reduced the sentences
  • Whether the presence of multiple victims within a single course of offending constituted a legitimate circumstance of aggravation
  • Whether the aggregate sentences were manifestly excessive, particularly given the appellant's strong subjective case

Decision

The Court of Criminal Appeal dismissed the appeal, finding no error in the sentencing judge's approach. The Court accepted that the standard non-parole period provisions under s 112(2) apply to a wide range of break-and-enter offences, and that in assessing where a particular offence sits relative to the mid-range, the sentencing court must account for that diversity. On the facts, the sophistication of the appellant's method, the elaborate security he defeated, the multiple victims across multiple units, and the fact that occupants were present and asleep during intrusions all supported a finding of above mid-range seriousness.

The Court rejected the argument that the appellant's gambling problem operated as a mitigating factor. While gambling had been advanced as an explanation for the offending, it did not amount to a condition diminishing the appellant's moral culpability in any legally recognised way. The presence of multiple victims was properly treated as an aggravating feature rather than something already subsumed by the course of conduct.

The Court also considered fresh evidence adduced on appeal, including a psychiatric report diagnosing chronic post-traumatic stress disorder and evidence of educational progress in custody. The Court acknowledged the appellant's subjective case was very strong. However, it found that these matters had been adequately reflected in the original sentencing and did not warrant a different result. An attempted escape from custody that occurred after sentencing was noted, but the Court found it had no specific relevance to the sentencing appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In assessing offences against s 112(2) of the Crimes Act 1900 against the standard non-parole period benchmark, a sentencing court must account for the wide diversity of conduct the provision captures; highly sophisticated methods that defeat elaborate security can properly place an offence above the mid-range.
  • A gambling problem advanced as an explanation for break-and-enter offending does not automatically qualify as a mitigating factor reducing moral culpability.
  • The Court of Criminal Appeal confirmed that multiple victims across multiple offences within a single course of conduct is a legitimate circumstance of aggravation in sentencing.
  • Even a very strong subjective case, including good prospects of rehabilitation, a psychiatric diagnosis, and positive conduct in custody, will not necessarily warrant appellate intervention where the underlying offences are objectively serious.
  • Fresh evidence introduced on appeal (here, a PTSD diagnosis and post-sentence conduct) is assessed in terms of whether it changes the overall sentencing outcome; where it merely reinforces conclusions already reached by the sentencing judge, it will not displace the original sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(2), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346
- 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
- Regina v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740
- Marshall v Regina [2007] NSWCCA 24
- R v Harris [2007] NSWCCA 130
- R v Huynh [2005] NSWCCA 220
- Assi v Regina [2006] NSWCCA 257
- Anna Le v Regina [2006] NSWCCA 136
- 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
- SA Police v John (1995) 79 A Crim R 510