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District Court 16 May 2017

R v Jack Toutounji

[2017] NSWDC 188

DrugsTheft & property
CRIMINAL LAW SENTENCE BREAK, ENTER AND STEAL TYPE OFFENCE AGGREGATE SENTENCE SPECIAL CIRCUMSTANCES REFERRAL TO THE DRUG COURT

Citation: R v Jack Toutounji [2017] NSWDC 188
Court: District Court of New South Wales
Date: 16 May 2017
Judge(s): Letherbarrow SC DCJ

Background

The offender pleaded guilty in the Local Court to five principal offences, predominantly break, enter and steal charges under the Crimes Act 1900. He also sought to have 23 additional offences taken into account on four Form 1 notices (a procedural mechanism that allows a court to consider further offences when sentencing, without imposing separate penalties for each).

The offending spanned approximately four months, from September 2015 to January 2016, and targeted residential properties across 16 affluent Sydney suburbs. The offending ceased only when the offender was arrested. Notably, he committed these offences while on parole for an earlier break, enter and steal conviction, and that parole was subsequently revoked by the State Parole Authority.

The third principal offence was the most serious: aggravated stealing in a dwelling under section 109(2) of the Crimes Act, carrying a maximum of 20 years imprisonment. The circumstance of aggravation was that the offender knew a person or persons were present in the dwelling at the time. A forensic psychologist's report was tendered on behalf of the offender, and a confidential exhibit addressed the issue of past assistance to authorities.

  • How to construct an appropriate aggregate sentence across five principal offences and 23 Form 1 matters, in accordance with the totality principle
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio
  • Whether discounts for guilty plea and past assistance to authorities were warranted, and at what level
  • Whether the offender met the threshold for referral to the Drug Court as a potentially eligible convicted offender under the Drug Court Act

Decision

Letherbarrow SC DCJ sentenced the offender on each of the five principal offences, taking the Form 1 matters into account in the usual way. The indicated sentences before aggregation ranged from 2 years and 9 months (fourth principal offence) to 4 years and 8 months (third principal offence). Starting points for each offence reflected the seriousness of the individual conduct, with discounts then applied for the guilty plea and past assistance.

The court imposed an aggregate sentence of 6 years and 6 months, commencing 3 September 2016 and expiring 2 March 2023. The non-parole period was set at 4 years and 3 months, expiring 2 December 2020. This ratio reflected findings of special circumstances, a concept that permits a court to extend the parole period beyond the standard proportion where there are good reasons, such as a need for supervision and support on release.

Having regard to the length of the sentence and the offender's circumstances (including the forensic psychology report), the court formed the view that the Drug Court might find the offender to be an "eligible convicted offender" within the meaning of the Drug Court Act. Accordingly, the court referred him to the Drug Court under section 18B(1)(b) of that Act to determine whether a compulsory drug treatment order should be made. The backup offence under section 188(1)(b) of the Crimes Act was dismissed.

Orders Made

  • Offender convicted of each of the five principal offences
  • Aggregate sentence of 6 years and 6 months imposed, commencing 3 September 2016 and expiring 2 March 2023
  • Non-parole period of 4 years and 3 months, commencing 3 September 2016 and expiring 2 December 2020
  • Offender referred to the Drug Court under section 18B(1)(b) of the Drug Court Act to determine eligibility for a compulsory drug treatment order
  • Copy of the forensic psychologist's report (Jones, 29 March 2017) directed to accompany the offender's warrant of commitment
  • Backup offence contrary to section 188(1)(b) of the Crimes Act dismissed

Key Takeaways

  • The District Court applied the totality principle when constructing an aggregate sentence across five principal offences and 23 Form 1 matters, ensuring the overall sentence reflected the full criminality without being crushing.
  • A finding of special circumstances allowed the court to extend the parole component beyond the standard ratio, here justified by the offender's rehabilitation needs and the utility of supervised reintegration following a lengthy custodial term.
  • Discounts were applied for both the guilty plea and past assistance to authorities, with the court treating these as distinct mitigating factors affecting the sentence imposed on each principal offence before aggregation.
  • Where a sentence exceeds the threshold under the Drug Court Act, a sentencing court has power under section 18B(1)(b) to refer the offender to the Drug Court to assess eligibility for a compulsory drug treatment order, even in cases involving serious and prolific property offending.
  • Offending committed while on parole for a similar prior offence was a significant aggravating factor, consistent with section 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, and informed the starting points adopted for each principal offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 109(2), 112(1)(a), 113(1), 117, 148, 154F, 188(1)(b), 192E(1)(a), 527C(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 21A(2)(d), 23(1), (2), (4)
- Drug Court Act 1998 (NSW): ss 5A, 18B(1)(b)

Cases
- Postiglione v The Queen (1997) 189 CLR 295
- Pearce v The Queen (1998) 194 CLR 610
- R v Ponfield (1999) 48 NSWLR 327
- Markarian v The Queen (2005) 228 CLR 357
- Regina v Webster [2005] NSWCCA 110
- R v Byrne [2005] NSWCCA 141
- Callaghan v R (2006) 160 A Crim R 145
- Cayardi v R (2007) 165 A Crim R 41
- R v Harris (2007) 171 A Crim R 207
- Watts v Regina [2007] NSWCCA 153
- Lewins v R [2007] NSWCCA 189
- R v Merrin [2007] NSWCCA 255
- Ourdi v R [2009] NSWCCA 46
- Mapp v Regina [2010] NSWCCA 269
- R v Grover; Grover v R [2013] NSWCCA 149
- Barnes v R [2014] NSWCCA 224
- Morgan v R [2014] NSWCCA 284
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Meataui [2016] NSWCCA 42
- Pham v R [2017] NSWCCA 75