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District Court 13 December 2018

R v Omar

[2018] NSWDC 393

Theft & propertyPublic order & justice offences
CRIMINAL LAW OFFENCE PLEA OF GUILTY AGGRAVATED BREAK AND ENTER LARCENY OBJECTIVE SERIOUSNESS

Citation: R v Omar [2018] NSWDC 393
Court: District Court of New South Wales
Date: 13 December 2018
Judge: Scotting DCJ

Background

The offender pleaded guilty to four offences arising from a coordinated criminal enterprise in December 2015. The enterprise involved planning and executing a "ram raid" on the Meadowbank Village Plaza Shopping Centre, with the aim of stealing an ANZ Bank ATM. The offender acted in company with three co-offenders, and his involvement was established through telephone intercepts, cell tower data, tracking device evidence, and DNA recovered from the steering wheels of stolen vehicles.

The group conducted extensive reconnaissance of the shopping centre over several nights before the attack. In the early hours of 24 December 2015, a stolen Mitsubishi Pajero was driven at high speed into the shopping centre façade and rammed into the ATM. The ATM could not be removed because one of its mountings remained bolted to the floor. The offender's DNA was found on the Pajero's steering wheel.

When police executed a search warrant at the offender's Moorebank residence on 24 December 2015, five stolen vehicles and a stolen jet ski were located on the property. DNA matching the offender was found in two of those vehicles. The offender was charged with aggravated break and enter with intent to commit larceny (the ram raid itself), two counts of taking and driving a conveyance without consent, and recklessly dealing with the proceeds of crime.

  • What was the appropriate aggregate sentence for the four offences, taking into account their objective seriousness and the applicable maximum penalties?
  • What weight should be given to mitigating factors, including the offender's dysfunctional upbringing, cocaine addiction, and medical conditions experienced in custody?
  • Whether special circumstances existed justifying a longer parole period relative to the non-parole period.
  • How the parity principle applied, given that co-offenders had already been sentenced.

Decision

Scotting DCJ found the offences were serious. The aggravated break and enter carried a maximum of 14 years, the take-and-drive offences each carried a maximum of 5 years, and the proceeds of crime offence carried a maximum of 10 years. The ram raid involved careful planning over several weeks, was carried out in company, and caused significant damage to the shopping centre, even though the ATM was not ultimately stolen.

On mitigation, the court accepted that the offender's dysfunctional upbringing reduced his moral culpability, consistent with the High Court's guidance in Bugmy v The Queen. His cocaine addiction at the time of the offences was noted as providing some explanation for his conduct, though it was not treated as a mitigating factor. Medical conditions in custody had made his imprisonment more difficult, but the court did not consider them to be overly serious.

On the parity principle, the court concluded the offender should receive the same sentence as co-offender McArthur. The lighter sentence imposed on co-offender Alameddine was attributed to Alameddine's serious medical condition, a circumstance not applicable here. The sentence was backdated, partially accumulated on an existing sentence the offender was serving for driving whilst disqualified.

The court found special circumstances existed, principally because of the offender's medical needs and the requirement for residential rehabilitation. This justified extending the parole period beyond what would otherwise apply.

Orders Made

  • The offender was convicted on all counts.
  • An aggregate sentence of 6 years imprisonment was imposed, with a non-parole period of 4 years.
  • The sentence was backdated to commence on 23 March 2016.
  • The non-parole period was set to expire on 22 March 2020, with the head sentence expiring on 22 March 2022.
  • The offender was referred to the Drug Court for assessment for a Compulsory Drug Treatment Order.

Key Takeaways

  • The District Court confirmed that a dysfunctional upbringing can reduce an offender's moral culpability at sentencing, following the High Court's approach in Bugmy v The Queen (2013) 249 CLR 571, but a cocaine addiction at the time of offending is an explanatory factor only and does not operate as a mitigating factor.
  • Under the parity principle, co-offenders in the same enterprise should generally receive comparable sentences unless there are meaningful differences in their circumstances; here, Alameddine's more lenient sentence was justified by a serious medical condition not present in the offender's case.
  • A finding of special circumstances can be grounded in a combination of unmet medical needs in custody and the requirement for residential drug rehabilitation, supporting an extended parole period.
  • Where multiple serious offences arise from a single criminal enterprise, an aggregate sentence is an appropriate sentencing mechanism under the Crimes (Sentencing Procedure) Act 1999.
  • Extensive pre-offence planning, including reconnaissance over multiple nights and the deliberate theft of vehicles for use as weapons, are factors that increase the objective seriousness of a break and enter offence, even where the ultimate goal of the crime is not achieved.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 113(2), 154A(1)(a), 193B(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- R v Elemes [2000] NSWCCA 235
- R v Henry (1999) 46 NSWLR 346
- R v Ly [2014] NSWCCA 78
- R v Reilly [2012] NSWCCA 166
- R v Youkhana [2004] NSWCCA 412