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Ourdi v R

Ourdi v R

Case [2009] NSWCCA 46 3 March 2009

Criminal Liability

Sentencing

Circumstances of Aggravation

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Ourdi v R [2009] NSWCCA 46

FILE NUMBER(S):
2007/5902

HEARING DATE(S):
11/02/09

JUDGMENT DATE:
3 March 2009

PARTIES:
Rachid Ourdi (Appl)
Regina (Resp/Crown)

JUDGMENT OF:
Grove J Blanch J Kirby J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/11/0357

LOWER COURT JUDICIAL OFFICER:
Boulton DCJ

LOWER COURT DATE OF DECISION:
7/12/07

COUNSEL:
R Burgess (Appl)
P Miller (Resp/Crown)

SOLICITORS:
S O'Connor - LAC (Appl)
S Kavanagh (Resp/Crown)

CATCHWORDS:
Criminal Law
standard non parole period offences
whether above the mid-range
cat burglar moving through high rise
need take account of diverse nature s112(2) indictable offences and circumstances of aggravation
gambling
whether a mitigating factor
circumstances of aggravation
multiple victims
whether sentences manifestly excessive
strong subjective case.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

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

TEXTS CITED:

DECISION:
(1) Leave to appeal granted
(2) but the appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/5902
GROVE J
BLANCH J
KIRBY J
Tuesday 3 March 2009

Rachid OURDI v REGINA

Judgment

GROVE J: I agree with Kirby J.
BLANCH J: I agree with Kirby J.
KIRBY J: On 17 May 2005, Rachid Ourdi (the applicant) was arrested and charged with five offences, which may be summarised as follows:
Counts 1 & 2: Entry of a dwelling house with intent to commit a serious indictable offence (namely, stealing) in circumstances of aggravation, that is, knowing people were within the dwelling, contrary to s 111(2) Crimes Act 1900 (“the Act”) (maximum penalty: 14 years imprisonment).
Counts 3, 4 & 5: Breaking and entering a dwelling house and committing a serious indictable offence (namely, stealing) in circumstances of aggravation, that is, knowing people were there, contrary to s 112(2) of the Act (maximum penalty: 20 years imprisonment with a standard non parole period of 5 years).
After a little over three months, the applicant was granted conditional bail on 29 June 2005. On 18 September 2007 he was arraigned before Boulton DCJ…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ourdi v R

Details

AGLC: Ourdi v R [2009] NSWCCA 46
Case: [2009] NSWCCA 46
Decision Date: 3 March 2009

CaseChat Overview and Summary

The case of Ourdi v R was brought before the court where the defendant, Ourdi, challenged the determination of his non-parole period for an indictable offence. The dispute centred on whether the standard non-parole period for the crime was appropriately set above the mid-range, taking into account the specific circumstances of the offence. Ourdi had been involved in a high-rise burglary, necessitating a comprehensive analysis of the nature and context of the indictable offence as well as any aggravating factors present in the case.

The court was tasked with deciding several legal issues, including the appropriate range for the non-parole period in the context of diverse indictable offences and the specific aggravating circumstances. Additionally, the court had to determine if gambling, which the defendant engaged in, could be considered a mitigating factor and whether the circumstances of aggravation, such as multiple victims, warranted a longer non-parole period. The court also needed to assess if the sentences imposed were manifestly excessive, given the subjective nature of the case.

The court's reasoning focused on the need to balance the diverse nature of the indictable offence with the circumstances of aggravation. It was noted that the defendant's involvement in gambling did not constitute a mitigating factor, and the aggravating circumstances, including the impact on multiple victims, justified a non-parole period above the mid-range. However, the court concluded that the sentences were not manifestly excessive, taking into account the strong subjective case presented. The court's final orders reflected this balanced approach, confirming the non-parole period while ensuring it was commensurate with the gravity of the offence and the circumstances involved.

Orders