R v Nareg Mouradian

[2007] NSWDC 114

CITATION:	R v Nareg Mouradian [2007] NSWDC 114
JUDGMENT DATE:	9 March 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Conviction appeals dismissed. Convictions confirmed. Sentences of 6 months for malicious damage offences confirmed. Sentence of 18 months for breaking out having committed serious indictable offence quashed. In lieu sentence of 9 months. All sentences suspended pursuant to s12 Crimes (Sentencing Procedure) Act 1999, conditional upon entering Good Behaviour Bonds.
CATCHWORDS:	Criminal law - Conviction Appeal from Local Court - malicious damage - breaking out after committing serious indictable offence.
PARTIES:	Regina Nareg Mouradian
FILE NUMBER(S):	06/12/0674
SOLICITORS:	Appellant: Mr A RESTUCCIA Respondent: Mr M LAFFAN - Solicitor for Public Prosecutions

JUDGMENT

1 Nareg Mouradian, hereinafter the appellant, had been employed with DJ’s Pty Limited as a loss prevention officer for six and a half years. For those years he had been a model employee, taking an active part in the enhancing of store security at Bondi Junction.

2 In mid-2004 work-related stress symptoms began to manifest as anxiety and panic attacks. He was assessed as unfit to work on 9 June 2004 to 24 June 2004. On 24 June 2004 he was assessed as fit to work. The period covered by Workcover New South Wales medical certificate was 24/6/04 to 28/8/04. The certificate spoke of him working as usual, subject to avoiding meetings and stressful situations, to have breaks. It was recommended he monitor security cameras, see exhibit twelve.

3 On the night of Tuesday 27 July 2004 at Bondi, four different cash registers were damaged. Two thousand five hundred and ninety-eight dollars was stolen and a roof-mounted pan tilt security camera valued at $3,000 was also stolen. The appellant was charged with maliciously damaging the cash registers, breaking out from the DJ’s store and stealing the camera.

4 After a prolonged hearing in the Local Court, Magistrate G E Brad convicted him of all five offences. He has appealed against his convictions and sentence.

5 The Court’s task is to rehear this matter upon the basis of the transcripts of evidence and exhibits tendered in the Local Court, and such evidence as is received in this court by leave.

6 The Court’s powers in determining the appeal enable it to set aside a conviction or dismiss the appeal. I remind myself the prosecution must prove each of the essential elements of each offence beyond a reasonable doubt.

7 The essential elements of each malicious damage charge requires the crown to prove beyond reasonable doubt that on 27 July 2004 the appellant maliciously damaged the relevant cash register. The essential element of the other count are that the appellant committed larceny whilst in the DJ’s building and then broke out of the DJ’s building.

The crown and defence cases.

8 The crown case is that the appellant remained behind after work on 27 July 2004, and while in the store, the appellant damaged four cash registers by prising them open, captured the cash float in the registers. The crown case was that the accused was in each area where cash register damage had occurred.

9 The crown case was that prior to prising open one cash register in the men’s suit counter, the camera tasked with surveilling that area was removed from its housing and stolen. Subsequently, if I understand the evidence correctly, the cash register in the men’s suit department became one of the four cash registers damaged and emptied of cash.

10 The defence case is that the appellant left as was normal on the twenty-seventh. He had drunk vodka on top of prescribed medication. He returned to the store to find a toilet. As a result of interaction between alcohol and medication he became dazed and confused. He fell asleep in the toilet and woke confused. In his confusion he wandered about level three and four of the building. There were a number of other personnel in the building, including cleaners, electricians and classic contractors - although I do not understand what they do - and night security.

11 The appellant’s case is he was not guilty of any damage to the cash registers, nor did he steal any money or the CCTV camera. It was conceded the appellant left via a fire escape exit. The cases against him are circumstantial.

12 A number of matters were not in dispute. Evidence establishing these facts was not challenged and I rely upon it to a point where I am satisfied beyond reasonable doubt of.

• There were more than four damaged cash registers. The circumstances in which they were damaged was only consistent with that damage being maliciously inflicted.
• In excess of $2,590 that had been used as, what I understand to be, cash floats went missing between close of work on 27 July and 9.30am on the following morning in circumstances where its disappearance could only have been consistent with larceny.
• The CCTV camera located near the men’s suit section was screwed from its fitting and thereafter missing in circumstances consistent only with it being taken during its operation by someone whose intent was to permanently deprive DJ’s of that camera.
• That at the same point, before 11pm, the appellant left DJ’s by opening a fire door to the fire escape staircase and descended the stairs to the street.
• The real issues in the trial are whether the person or persons who damaged the cash registers was one and the same person.
• That the person who damaged the cash register in the men’s suit section was the same person who moments before, or at least some time before, disconnected the camera.
• That the person who disconnected the camera was also the same person who stole the camera, thus whether the person who damaged the cash registers, stole the money, the cash tills and stole the camera was one and the same person.

13 The real issue before the Local Court and on appeal before me is whether the prosecution has proved beyond reasonable doubt the appellant was that person, if there be only one.

The case against the appellant.

14 The appellant did not return to work on the 28th. He claims to have worked the Monday the 25th for a shift swap. That shift swap was not shown in the time sheets as would normally be the situation. On Thursday he called in sick. Friday, Saturday and Sunday were his rostered days off.

15 On 2 August the appellant was interviewed by DJ’s risk manager. She alleged, “On each of these levels where you are clearly identified there was damage reported to cash registers”. He was then asked, “Can you tell me anything about the damage to these registers?” His reply was “I was in a daze, I don’t know”.

16 When asked which toilets he was in he again replied, “I don’t know, I was in a dazed state”. When asked whether he had a reason to be in all of the following areas - Sportscraft, Table Eight, George Gross, men’s accessories, men’s shoes and men’s suits - he answered, “I was in a dazed state. As far as I was concerned I wanted to get out”.

17 In the course of his evidence he professed a memory of his actions; “I tried to stick to the main aisles” - transcript 9/3/06, p 13. “I opened the fire door to look and see what came in or out” (I think that also may be on the same page). Significantly, the appellant recalls the doors closing behind him and locking him in the stair well and his descending to the street.

18 When asked why he had not attended work since the twenty-seventh by the risk manager in the interview, he answered, “I am pretty sick of working there. I vomit just before I walk in, I go to church before I walk in, I am pretty much sick of it”. When asked, “Is that the only reason that you have not attended work?” he replied “Plus the level of anxiety and all”. Shortly after he added, “You guys remember that I am a product of working there. I am a drunk and I am ashamed of that...” Earlier he had remarked, “I was running around like an idiot, but this is a result of the efforts of my employment, working for David Jones Limited”.

19 These answers are inconsistent with his sworn evidence, but consistent with him being disenchanted with David Jones.

20 The video images taken on the night of 27 July show him walking purposefully without any swaying, uncertainty or unsteadiness on his feet. In other words inconsistent with his being dazed and confused. He does not present in his movements as dazed, confused, distressed or under the influence of alcohol or any other substance.

21 One video image shows the appellant with something in his hand - I think it was his right hand - held behind his back. I have a reference - video image of 19.54, that is nineteen hours and fifty-four minutes. While the image is unclear, not permitting clear identification of the item, it is consistent with being long and thin, such as a screwdriver, tyre lever or jemmy. His evidence is it was a fixture that he had tripped over. He picked it up because he did not want anyone else to trip over it. Yet, he does not appear interested in reporting the injury, or delivering the fixture to someone in authority.

22 It is also to be remembered that the cleaning staff were at David Jones, cleaning at night. The reference in the evidence to injury comes, because he complained of hurting his back.

23 The appellant has a familiarity with cameras such as the one stolen, and how these cameras fitted within the plastic glass dome. The significance of that is that he would have, it seems, at least a knowledge, if not the skill, as to how to deal with it.

24 The appellant, who was tasked with property protection, failed to see the person who stole the camera or had a ladder en route to the camera, at a time moments before its removal when he was in the immediate vicinity of the lost camera.

25 The video evidence was selected by the risk manager who claimed there was nothing of interest on any other CCTV footage. While that evidence was contested in the trial before the magistrate, I am satisfied that her evidence is correct. None of the evidence shows any other single person in all relevant areas.

26 I accept the risk manager that all relevant video footage had been captured on the CD placed into evidence.

27 The accused’s account is that he walked around the floor after leaving a toilet. He headed towards the escalators on the way to the staff door. On the way he recalled a customer who earlier that day reported she had lost a ring. Although he and another man had earlier looked for it, they had no success. He decided she deserved a second chance. He walked up the escalator to Table Eight, looked for the ring, did not find it, made his way to the men’s suits, looked there, men’s knitwear, underwear and socks, and looked in those places.

28 That evidence appears to contradict the video image earlier referred to. He does not present on the video as looking for an object that may have fallen to the floor or onto a counter. Nor does he give that account in the interview undertaken by the risk manager. In fairness that may because he was never asked, as it seems to me, why he was there, simply what he knew.

29 The normal method of exiting the store was via the staff door - that was a store security measure. The appellant was in the business of property loss prevention, that is he was security-conscious. Yet he made no attempt, having exited the door in circumstances where the alarm would have been triggered, to return to the staff door and report his experience and allay any concerns that security might have as a consequence of the door alarm being activated. The appellant knew which cash registers were monitored by a CCTV security camera and which were not.

30 Magistrate Brad, who had the advantage of observing the witnesses, did not regard the appellant’s supporting witness, Christopher John Tancred, to be a witness of truth. Significantly, Tancred’s evidence was of being recruited earlier - on 27 July - by the appellant to look for the lady’s lost ring.

31 I must be guided by the learned magistrate’s observations and comments regarding the credibility of Tancred. The learned magistrate, who had the opportunity of observing the accused, found he lied about his movements on level four. He comes to that finding in part based upon the appellant’s account of his movements, and in part by analysis of the contents of the CCTV footage.

32 He also rejected the appellant’s evidence of looking for the ring. Again, that rejection was based upon an examination of the CCTV footage and the appellant’s explanation.

33 The learned magistrate’s finding, in effect that the accused was not a credible witness, is not in those circumstances a finding that I am required to give weight to, because the finding depends upon the magistrate’s viewing of the CCTV footage and not upon personal observations of the appellant whilst delivering his evidence.

34 Independently, although for much the same reasons, I come to a view that the appellant’s account is to be rejected. I have taken into account the appellant’s prior good character, on both the question of his credibility and the likelihood that someone with a long working record and his good character is likely to have stolen from his employer.

35 As earlier remarked, the appellant was resentful of his employer, blamed the employer for his stress, anxiety and panic attacks. The appellant had been drinking, although not nearly to the extent given in his evidence. The alcohol he had consumed though, made him more disinhibited than he otherwise would have been and impacted upon his judgment. I have no doubt he was motivated by his resentment of DJ’s.

36 I am satisfied beyond reasonable doubt the appellant was the person who disconnected the camera. What follows from that is that I am also satisfied the person who disconnected the camera was responsible for the malicious damage to a number of cash registers, including the four cash registers subject of charges.

37 I am satisfied he stole the contents of the cash registers, having successfully opened them. I am satisfied he stole the camera.

38 I have already indicated I am satisfied he broke out of DJ’s. I am satisfied that breaking out was unlawful in the circumstances.

39 I am satisfied beyond reasonable doubt of his guilt on all five matters. I dismiss his conviction appeal.

40 In respect of sentence, I have already entertained discussion on that matter with counsel on the last occasion, and indicated that if I did come to a view that the conviction appeals were to be dismissed, that the sentences would be confirmed, save and except that, where prison sentences were ordered I would have those sentences suspended. I intend to follow that course unless I am persuaded to the contrary.

41 The formal orders I make are: the conviction appeals are dismissed, the convictions confirmed, the terms of imprisonment imposed by the learned magistrate are confirmed. However, they are suspended conditional upon the appellant entering into a bonds under s 12 to be of good behaviour for the relevant length of each of the sentences.

42 The sentences of six months are all confirmed. The sentence of breaking out - a sentence of eighteen months is quashed and in lieu a sentence of nine months is imposed. It, too, is suspended. Now the bonds are to date from today. and so it seems to me that - he has to enter at least two bonds - one of six months and one of nine months. There must be at least two bonds, and maybe five. They'll work it out in the Registry. One bond (or more) must be six months, relating to the four malicious damage sentences, - the other, relating to the larceny and breaking out must be a nine month bond.

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