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R v Jack Toutounji

R v Jack Toutounji

Case [2017] NSWDC 188 16 May 2017

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Jack Toutounji [2017] NSWDC 188
Hearing dates: 31 March 2017
Date of orders: 16 May 2017
Decision date: 16 May 2017
Jurisdiction: Criminal
Before: Letherbarrow SC DCJ
Decision:
Aggregate sentence of 6 years and 6 months with a non-parole period of 4 years and 3 months

Catchwords: CRIMINAL LAW – Sentence– break, enter and steal type offence – multiple offences committed over 4 month period – aggregate sentence – special circumstances – referral to the Drug Court
Legislation Cited: Crimes Act 1900, ss 112(1)(a), 109(2), 148, 117, 192E(1)(a), 113(1), 527C(1)(a), 188(1)(b)
Crimes (Sentencing Procedure) Act 1999, ss 21A(2)(d), 23(1),(2),(4)
Cases Cited: Cayardi v R (2007) 165 A Crim R 41;
Regina v Webster [2005] NSWCCA 110;
R v Byrne [2005] NSWCCA 141;
Watts v Regina [2007] NSWCCA 153;
Lewins v R [2007] NSWCCA 189;
R v Merrin [2007] NSW CCA 255;
Ourdi v R [2009] NSWCCA 46;
Mapp v Regina [2010] NSWCCA 269;
R v Grover; Grover v R [2013] NSWCCA 149;
Morgan v R [2014] NSWCCA 284;
Pham v R [2017] NSWCCA 75;
Postiglione v The Queen (1997) 189 CLR 295;
Pearce v The Queen (1998) 194 CLR 610;
Markarian v The Queen (2005) 228 CLR 357;
R v Harris (2007) 171 A Crim R 207;
R v Meataui [2016] NSWCCA 42;
R v Ponfield (1999) 48 NSWLR 327;
Barnes v R (2014) NSWCCA 224;
Callaghan v R (2006) 160 A Crim R 145;
Veen v The Queen (No 2) (1988) 164 CLR 465;
R v McNaughton (2006) NSWLR 566.
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Jack Toutounji (Offender)
Representation:
Counsel:
Mr S Fraser (Offender)
Solicitors:
Mr B Ko (DPP)
Mr D Pace (Offender)

File Number(s): 2016/9303, 2016/17852

REMARKS ON SENTENCE

Introduction

The offender appears for sentence after adhering to his pleas of guilty entered in the Local Court in relation to 5 offences (the “principal offences”). As to the first, third, fourth and fifth principal offences, the offender seeks to have taken into account, in total, 23 further offences on 4 Form 1 notices. Despite the fact that there is no Form 1 in relation to the second principal offence, I nevertheless intend to refer to it as such to avoid confusion.
The bulk of all 28 offences are break, enter and steal type offences committed throughout 16 of the wealthier suburbs of Sydney over an approximate 4 month period between September 2015 and January 2016. They only came to an end consequent upon the offender’s arrest. None of the offences are subject to a standard non-parole period. As to their maximum penalties, these did not change over the period in question and I will only refer to them once.
The first principal offence is an offence of break enter and steal committed contrary to section 112(1)(a) of the Crimes Act for which the maximum penalty is 14…

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 R v Jack Toutounji

Details

AGLC: R v Jack Toutounji [2017] NSWDC 188
Case: [2017] NSWDC 188
Decision Date: 16 May 2017

CaseChat Overview and Summary

The defendant, Toutounji, was convicted of a series of break, enter and steal offences committed over a period of four months. The case was heard in the Supreme Court of Queensland. The prosecution argued for a significant sentence due to the frequency and nature of the offences, while the defence sought a lesser sentence citing the defendant's addiction to drugs and participation in a rehabilitation program. The court was required to determine an appropriate aggregate sentence, taking into account the special circumstances of the case, including the defendant's drug addiction and his referral to the Drug Court.

The court considered the gravity of the offences, which included multiple home invasions and thefts, and the impact on the victims. It also examined the defendant's background, his history of drug abuse, and his participation in a rehabilitation program. The court recognised the need for a sentence that addressed the defendant's underlying issues while also providing deterrence and protection to the community. The court concluded that an aggregate sentence was appropriate, but one that reflected the special circumstances of the case and the potential for rehabilitation.

After weighing the aggravating and mitigating factors, the court imposed an aggregate sentence of six years and six months imprisonment, with a non-parole period of four years and three months. The court found that this sentence balanced the need for punishment and deterrence with the opportunity for the defendant to address his drug addiction and reintegrate into society. The court also noted that the sentence provided a pathway for the defendant to participate in the Drug Court, which could potentially reduce the overall sentence if he successfully completed the program. The court was satisfied that the sentence met the objectives of justice in the circumstances of the case.

Orders

Orders of the court

Aggregate sentence of 6 years and 6 months with a non-parole period of 4 years and 3 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Jack Toutounji [2017] NSWDC 188

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 16 of 16 shown

Pham v The Queen
[2017] NSWCCA 75 Para 109

…255; Ourdi v R [2009] NSWCCA 46; Mapp v Regina [2010] NSWCCA 269; R v Grover; Grover v R [2013] NSWCCA 149; Morgan v R [2014] NSWCCA 284 and Pham v R [2017] NSWCCA 75.…
R v Meatuai
[2016] NSWCCA 42 Para 97

…the objective seriousness of s. 112 offences is not an easy task bearing in mind the breadth of offending which can occur thereunder: see R v Meataui [2016] NSWCCA 42.…
Morgan v The Queen
[2014] NSWCCA 284 Para 109

…189; R v Merrin [2007] NSW CCA 255; Ourdi v R [2009] NSWCCA 46; Mapp v Regina [2010] NSWCCA 269; R v Grover; Grover v R [2013] NSWCCA 149; Morgan v R [2014] NSWCCA 284 and Pham v R [2017] NSWCCA 75.…
R v Grover; Grover v R
[2013] NSWCCA 149 Para 109

…153; Lewins v R [2007] NSWCCA 189; R v Merrin [2007] NSW CCA 255; Ourdi v R [2009] NSWCCA 46; Mapp v Regina [2010] NSWCCA 269; R v Grover; Grover v R [2013] NSWCCA 149; Morgan v R [2014] NSWCCA 284 and Pham v R [2017] NSWCCA 75.…
Mapp v R
[2010] NSWCCA 269 Para 109

…NSWCCA 141; Watts v Regina [2007] NSWCCA 153; Lewins v R [2007] NSWCCA 189; R v Merrin [2007] NSW CCA 255; Ourdi v R [2009] NSWCCA 46; Mapp v Regina [2010] NSWCCA 269; R v Grover; Grover v R [2013] NSWCCA 149; Morgan v R [2014] NSWCCA 284 and Pham v R [2017] NSWCCA 75.…
Ourdi v R
[2009] NSWCCA 46 Para 109

…05] NSWCCA 110; R v Byrne [2005] NSWCCA 141; Watts v Regina [2007] NSWCCA 153; Lewins v R [2007] NSWCCA 189; R v Merrin [2007] NSW CCA 255; Ourdi v R [2009] NSWCCA 46; Mapp v Regina [2010] NSWCCA 269; R v Grover; Grover v R [2013] NSWCCA 149; Morgan v R [2014] NSWCCA 284 and Pham v R [2017] NSWCCA 75.…
Lewins v R
[2007] NSWCCA 189 Para 109

…re on form ones. Such decisions include Regina v Webster [2005] NSWCCA 110; R v Byrne [2005] NSWCCA 141; Watts v Regina [2007] NSWCCA 153; Lewins v R [2007] NSWCCA 189; R v Merrin [2007] NSW CCA 255; Ourdi v R [2009] NSWCCA 46; Mapp v Regina [2010] NSWCCA 269; R v Grover; Grover v R [2013] NSWCCA 149; Morgan v R [20…
Watts v R
[2007] NSWCCA 153 Para 109

…ous offences of a similar nature on form ones. Such decisions include Regina v Webster [2005] NSWCCA 110; R v Byrne [2005] NSWCCA 141; Watts v Regina [2007] NSWCCA 153; Lewins v R [2007] NSWCCA 189; R v Merrin [2007] NSW CCA 255; Ourdi v R [2009] NSWCCA 46; Mapp v Regina [2010] NSWCCA 269; R v Grover; Grover v R [20…
R v McNaughton
[2006] NSWCCA 242 Para 61

…on of a penalty which is disproportionate to the gravity of the subject offending: see Veen v The Queen (No 2) (1988) 164 CLR 465; R v McNaughton (2006) NSWLR 566.…
Markarian v The Queen
[2005] HCA 25 Para 107

…ffence. I have likewise taken into account all other matters to which I referred in accordance with the approach of McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51] and have applied an instinctive synthesis.…
R v Byrne
[2005] NSWCCA 141 Para 109

…ces including some involving numerous offences of a similar nature on form ones. Such decisions include Regina v Webster [2005] NSWCCA 110; R v Byrne [2005] NSWCCA 141; Watts v Regina [2007] NSWCCA 153; Lewins v R [2007] NSWCCA 189; R v Merrin [2007] NSW CCA 255; Ourdi v R [2009] NSWCCA 46; Mapp v Regina [2010] NSWC…
R v Webster
[2005] NSWCCA 110 Para 109

…le break and enter type offences including some involving numerous offences of a similar nature on form ones. Such decisions include Regina v Webster [2005] NSWCCA 110; R v Byrne [2005] NSWCCA 141; Watts v Regina [2007] NSWCCA 153; Lewins v R [2007] NSWCCA 189; R v Merrin [2007] NSW CCA 255; Ourdi v R [2009] NSWCCA…
R v Ponfield
[1999] NSWCCA 435 Para 97

…objective seriousness of the principle offences I have had regard to the various factors referred to by the Court of Criminal Appeal in R v Ponfield (1999) 48 NSWLR 327. Whilst this decision dealt with s. 112(1) offences it is also relevant to an offence committed contrary to s. 109(2) which is of a like nature. I al…
Pearce v The Queen
[1998] HCA 57 Para 108

…Due to the number of offences in this sentencing exercise, I also had close regard to the principles of totality as discussed in Pearce v The Queen (1998) 194 CLR 610. These principles require me, after having arrived at the indicative sentences in relation to each principle offence to then stand back and consider whether t…
Postiglione v the Queen
[1997] HCA 26 Para 108

…consider whether the overall sentence to be imposed is just and appropriate and reflects the total criminality involved; see Postiglione v The Queen (1997) 189 CLR 295 per McHugh J.…
Veen v The Queen (No 2)
[1988] HCA 14 Para 61

…h weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the subject offending: see Veen v The Queen (No 2) (1988) 164 CLR 465; R v McNaughton (2006) NSWLR 566.…

Legislation cited in this decision · 2

Crimes Act 1900 (ACT)
109(2), 112(1)(a), 113(1), 117, 148, 188... 8 mentions
Crimes (Sentencing Procedure) Act 1999 (NSW)
21A(2)(d), 23(1) 3 mentions (from Para 55)

Medium Neutral Citation:	R v Jack Toutounji [2017] NSWDC 188
Hearing dates:	31 March 2017
Date of orders:	16 May 2017
Decision date:	16 May 2017
Jurisdiction:	Criminal
Before:	Letherbarrow SC DCJ
Decision:	Aggregate sentence of 6 years and 6 months with a non-parole period of 4 years and 3 months
Catchwords:	CRIMINAL LAW – Sentence– break, enter and steal type offence – multiple offences committed over 4 month period – aggregate sentence – special circumstances – referral to the Drug Court
Legislation Cited:	Crimes Act 1900, ss 112(1)(a), 109(2), 148, 117, 192E(1)(a), 113(1), 527C(1)(a), 188(1)(b) Crimes (Sentencing Procedure) Act 1999, ss 21A(2)(d), 23(1),(2),(4)
Cases Cited:	Cayardi v R (2007) 165 A Crim R 41; Regina v Webster [2005] NSWCCA 110; R v Byrne [2005] NSWCCA 141; Watts v Regina [2007] NSWCCA 153; Lewins v R [2007] NSWCCA 189; R v Merrin [2007] NSW CCA 255; Ourdi v R [2009] NSWCCA 46; Mapp v Regina [2010] NSWCCA 269; R v Grover; Grover v R [2013] NSWCCA 149; Morgan v R [2014] NSWCCA 284; Pham v R [2017] NSWCCA 75; Postiglione v The Queen (1997) 189 CLR 295; Pearce v The Queen (1998) 194 CLR 610; Markarian v The Queen (2005) 228 CLR 357; R v Harris (2007) 171 A Crim R 207; R v Meataui [2016] NSWCCA 42; R v Ponfield (1999) 48 NSWLR 327; Barnes v R (2014) NSWCCA 224; Callaghan v R (2006) 160 A Crim R 145; Veen v The Queen (No 2) (1988) 164 CLR 465; R v McNaughton (2006) NSWLR 566.
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Jack Toutounji (Offender)
Representation:	Counsel: Mr S Fraser (Offender) Solicitors: Mr B Ko (DPP) Mr D Pace (Offender)
File Number(s):	2016/9303, 2016/17852