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10
Court of Criminal Appeal 14 February 2018

Katsis v R

[2018] NSWCCA 9

Sexual offencesHomicide
CRIMINAL LAW SENTENCE APPEAL PAROLE PERIODS IMPOSED DURING THE 1980S GROUNDS OF APPEAL NOT MADE OUT

Citation: Katsis v R [2018] NSWCCA 9
Court: NSW Court of Criminal Appeal
Date: 14 February 2018
Judges: Hoeben CJ at CL (principal judgment); Schmidt J and Campbell J (agreeing)

Background

The applicant was convicted in October 2015 of the murder and rape of a 66-year-old woman at Little Bay on 3 September 1988, one week before he turned 18. The offences were not prosecuted at the time. DNA evidence extracted from retained forensic samples only matched the applicant in 2014, after his buccal swab was uploaded to a database when he began serving an unrelated prison sentence.

At sentencing in December 2015, the applicant received a fixed term of six years for sexual intercourse without consent and, for murder, a 20-year sentence with a 15-year non-parole period. Both sentences commenced in September 2014 on arrest. The sentencing judge found that the applicant had most likely entered the deceased's unit to steal, that the rape was opportunistic, and that murder followed. The applicant did not accept responsibility and maintained a false account at trial.

The applicant sought leave to appeal on five grounds, contending that the sentencing judge had made various errors in the exercise of the sentencing discretion.

  • Whether the sentencing judge erred in treating the deceased as a "vulnerable" victim under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW), given that her vulnerability arose from social isolation rather than any innate characteristic.
  • Whether the sentencing judge correctly applied the principles governing sentencing for historical offences, particularly regarding the standards and practices of the 1980s.
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 that would justify reducing the standard ratio between sentence and non-parole period, having regard to the length of non-parole periods typically imposed in the 1980s.
  • Whether the applicant's deprived upbringing should have reduced his moral culpability, in accordance with the High Court's reasoning in Bugmy v R [2013] HCA 37.
  • Whether the applicant was entitled to have his prior good character treated as a mitigating factor under s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999.

Decision

Ground 1 (vulnerable victim): The Court of Criminal Appeal held that the sentencing judge correctly treated the deceased as vulnerable. Her age, physical frailty, social isolation, and the applicant's awareness of her circumstances all supported that characterisation. The vulnerability provision in s 21A(2)(l) is not limited to persons whose vulnerability stems from a formal status or inherent disability. The sentencing judge was entitled to find that the applicant knew she was vulnerable and deliberately targeted her.

Ground 2 (historical offending principles): The Court found no error in the sentencing judge's approach to historical sentencing principles. The judge was required to impose a sentence reflecting current sentencing standards, which are higher for offences of this kind than those prevailing in 1988, while also ensuring the sentence was not unjust by reason of the passage of time. The sentencing judge applied both considerations appropriately, and the resulting sentence was not shown to be excessive.

Ground 3 (special circumstances): The applicant argued that non-parole periods in the 1980s were shorter relative to head sentences, and that this warranted a finding of special circumstances. The Court rejected the argument, noting that the length of non-parole periods in an earlier era does not, of itself, constitute special circumstances for the purposes of s 44. No error was established in the sentencing judge's refusal to adjust the standard ratio.

Grounds 4 and 5 (deprived upbringing and good character): The Court accepted that the applicant's difficult upbringing had not been adequately raised at first instance, but held that even if it had been, the extreme gravity of the offending and the need for general deterrence would have permitted the sentencing judge to give it little weight. On good character, the Court found that the applicant could not be treated as a person of good character. His post-offending criminal record, which included two convictions for assault, was not consistent with that characterisation, and the sentencing judge had treated his record as essentially neutral, which was open to him.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The "vulnerable victim" aggravating factor under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 is not confined to vulnerability arising from a formal status or inherent condition. Social isolation, physical frailty, and the offender's knowledge of those circumstances can each support the characterisation.
  • Where a historical offence is sentenced under current standards, the sentencing court is not required to replicate the non-parole period ratios that prevailed at the time of the offending. The existence of shorter non-parole periods in an earlier era does not, without more, amount to special circumstances justifying departure from the s 44 statutory ratio.
  • In dismissing the appeal, the Court confirmed that the extreme gravity of an offence and the importance of general deterrence can reduce the weight given to an offender's prior good character, even where that character would ordinarily attract mitigation.
  • The Bugmy principle, which recognises that a deprived upbringing can bear on moral culpability, was acknowledged by the Court. However, its application may be displaced or given limited weight where the objective seriousness of the offending is sufficiently high.
  • A submission that an offender has not reoffended in a particular way after committing a grave crime does not establish good character for sentencing purposes, particularly where the subsequent record includes other criminal convictions.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 19, 61D(1), 442
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
- Probation and Parole Act 1983 (NSW), s 20A

Cases:
- Bugmy v R [2013] HCA 37; 249 CLR 571
- Munda v Western Australia [2013] HCA 38; 249 CLR 600
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- R v Kennedy [2000] NSWCCA 527
- Ingrey v R [2016] NSWCCA 31
- CT v R [2017] NSWCCA 15
- Longworth v R [2017] NSWCCA 119
- Bradley v The Queen [2017] VSCA 69
- MPB v R [2013] NSWCCA 213; 234 A Crim R 576
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368
- R v Katsis [2015] NSWSC 1890 (the sentence below)
- AJB v R [2007] NSWCCA 51; 169 A Crim R 32
- PH v R [2009] NSWCCA 161
- R v GDP (1991) 53 A Crim R 112
- R v Magnuson [2013] NSWCCA 50