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District Court 31 January 2013

R v Orrock

[2013] NSWDC 160

Fraud & dishonesty
CRIMINAL LAW SENTENCE GUILTY PLEA S195 (1)(B) CRIMES ACT NEWTOWN POLICE TRUCK DESTROYED BY FIRE OFFENDER RELIED ON NON

Citation: R v Orrock [2013] NSWDC 160
Court: District Court of New South Wales
Date: 31 January 2013
Judge(s): Tupman DCJ

Background

The offender operated a tattoo parlour in King Street, Newtown. In the early hours of 20 April 2012, he took a baseball bat from behind the counter, smashed the window of an unattended marked police truck parked immediately outside the adjoining premises, poured isopropyl alcohol through the window, and set the truck alight. The truck was extensively damaged, with the total cost to the NSW Police Force assessed at over $58,000. The front awning of a neighbouring café was also damaged.

The offender was charged with intentionally destroying property by fire under s 195(1)(b) of the Crimes Act 1900, as well as intimidating a police officer. He admitted committing the act but claimed he did so out of necessity, relying on a perceived need to distance himself and his business from any association with outlaw motorcycle gangs during a period of drive-by shootings in Sydney.

The matter had a complex procedural history. An earlier trial was vacated mid-hearing after it emerged that police had failed to analyse CCTV footage seized from the offender's premises until after proceedings had commenced, without notifying the prosecution or the court. The offender ultimately pleaded guilty at the commencement of the re-listed trial.

  • Whether non-exculpatory necessity (a motive falling short of a complete defence) could operate as a mitigating factor on sentence, reducing the objective seriousness of the offending and the offender's moral culpability.
  • What weight to give general and specific deterrence given the reduced moral culpability finding.
  • Whether special circumstances existed justifying a non-parole period of less than the standard one-third of the total sentence.
  • Whether compensation orders should be made in favour of the NSW Police Force and the café owner, and whether discretion should be exercised to reduce or refuse the order to the Police Service given the offender's own costs burden.

Decision

Tupman DCJ accepted the offender's evidence that his motive was to prevent any public association between his business and outlaw motorcycle gangs during a period of heightened gang-related violence in Sydney. Her Honour characterised this as non-exculpatory necessity: a state of mind that did not provide a legal defence but was nonetheless relevant to assessing objective criminality and moral culpability. Drawing by analogy from s 21A(3)(d) of the Crimes (Sentencing Procedure) Act 1999, which recognises non-exculpatory duress as a mitigating factor, her Honour held that accepted evidence of non-exculpatory necessity similarly reduces the weight of those factors on sentence.

Despite this reduction in moral culpability, her Honour emphasised that general and specific deterrence remained important sentencing considerations. The offence involved deliberate destruction of a police vehicle and carried a maximum penalty of 10 years imprisonment. The fact that it was a spontaneous act, not premeditated, was noted as relevant to the overall assessment of seriousness. Her Honour also took into account that the offence was a Table 1 matter capable of being dealt with in the Local Court.

Special circumstances were found. The offender was a first-time prisoner, and his pre-trial custody had been served in two separate blocks following a DPP appeal against bail granted in the Local Court. These factors, combined with good prospects of rehabilitation, justified a departure from the standard ratio between the non-parole period and the balance of sentence.

On the question of compensation to the Police Service, the offender argued discretion should be exercised against a full order, given the significant costs he had incurred in the aborted trial. Her Honour declined that submission. The police truck was destroyed solely because the offender burned it, and the offender's separate costs burden was not a proper basis to reduce or withhold compensation to the Police Service.

Orders Made

  • The offender was convicted and sentenced to a total term of three years imprisonment, commencing 30 April 2012 and expiring 29 April 2015.
  • Non-parole period of 18 months, commencing 30 April 2012 and expiring 29 October 2013.
  • Parole period of 18 months, commencing 30 October 2013 and expiring 29 April 2015.
  • Compensation order of $58,138.71 to the NSW Police Force.
  • Compensation order of $2,300 to GIO Insurance.
  • Compensation order of $230 to RY Trading Pty Limited (the café owner).
  • A certificate under the Suitors Fund Act 1951 had previously been made in respect of the offender's costs of the vacated trial.

Key Takeaways

  • Non-exculpatory necessity, where accepted by the sentencing court, can reduce an offender's assessed moral culpability and objective criminality even though it provides no complete defence to the charge. Tupman DCJ treated it as analogous to the statutory mitigating factor of non-exculpatory duress under s 21A(3)(d) of the Crimes (Sentencing Procedure) Act 1999.

  • A reduction in moral culpability does not displace the importance of general and specific deterrence, particularly where the offence involves deliberate destruction of police property and carries a maximum penalty of 10 years imprisonment.

  • The District Court confirmed that a sentencing court is obliged to take into account the fact that a Table 1 offence could have been dealt with summarily in the Local Court, even if neither party raises it in submissions.

  • Special circumstances justifying a lower-than-standard non-parole period can arise from a combination of factors, including first-time imprisonment and pre-trial custody served in multiple separate blocks as a result of a prosecution bail appeal.

  • An offender's costs burden arising from a vacated trial, even where those costs substantially exceed any available Suitors Fund certificate, does not constitute an appropriate basis on which to exercise discretion to reduce or refuse a compensation order in favour of a party whose property the offender destroyed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(d)
- Criminal Procedure Act 1986 (NSW) (Table 1 offence classification)
- Suitors Fund Act 1951 (NSW)

Cases
- R v Tiknius [2011] NSWCCA 215
- R v Thomson & Houlton (2000) 49 NSWLR 383