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District Court 9 March 2020

R v Katakouzinos

[2020] NSWDC 115

Assault & violenceFraud & dishonestyPublic order & justice offences
CRIME SENTENCE AFFRAY DEMAND MONEY WITH MENACES

Citation: R v Katakouzinos [2020] NSWDC 115
Court: District Court of New South Wales
Date: 9 March 2020
Judge: Bourke SC DCJ

Background

The offender was sentenced for an affray committed on 10 September 2017 at The Ettamogah Hotel, Kellyville Ridge. He and several associates became involved in a violent group attack on four men after one of the strangers made an unwanted sexual advance toward a woman in the offender's group. The brawl resulted in serious injuries, most significantly the near-severing of one victim's right ear, which required surgical reattachment two days later.

The offender pleaded guilty to the substantive affray charge. He also sought to have two further matters taken into account on a "Form 1" basis: a second affray offence and an offence of demanding money with menaces. The demand offence arose from a separate incident on 15 February 2018 involving threats made to extract money from a victim who had become entangled in a debt dispute connected to a motorcycle gang associate.

At sentencing, the court also addressed the offender's breaches of two existing court orders: a good behaviour bond imposed in December 2016 for drug possession offences, and a Community Correction Order imposed in November 2018 for a driving offence.

  • What was the appropriate sentence for the substantive affray offence, taking into account the Form 1 matters?
  • What discount applied to reflect the offender's early guilty plea?
  • How should the breaches of the existing good behaviour bond and Community Correction Order be dealt with?

Decision

The court imposed a sentence of two years and nine months (the head sentence) with a non-parole period of one year and nine months for the affray offence, with both periods backdated to commence on 17 August 2018. The 25% discount for the early guilty plea was applied in accordance with established sentencing principle. The court took into account the Form 1 matters, being the second affray and the demand money with menaces offence, when arriving at the overall sentence.

Although one victim suffered a severe and disfiguring injury during the affray, the court accepted the Crown's concession that this offender was not directly responsible for that wounding. The court nonetheless treated the group nature of the violence, including the use of chairs and broken glass by co-offenders, as a significant feature of the offending. The threat made by a co-offender to a security guard on departure was expressly excluded from the matters relevant to this offender's sentence.

On the breach of the Community Correction Order, the court revoked the existing order and replaced it with a fresh Community Correction Order for 12 months, subject to standard conditions. A nine-month licence disqualification was also imposed, though the court noted that by operation of statute this would not commence until the offender's release from custody. On the breach of the good behaviour bond imposed for the 2016 drug offences, the court revoked the bond, recorded a formal conviction under section 10A of the Crimes (Sentencing Procedure) Act 1999, but imposed no additional penalty.

Orders Made

  • Affray (substantive offence, Form 1 matters taken into account): head sentence of 2 years 9 months, non-parole period of 1 year 9 months, both commencing 17 August 2018; head sentence to expire 16 May 2021, non-parole period to expire 16 May 2020.
  • Community Correction Order (28 November 2018): revoked; replaced with a new Community Correction Order for 12 months from the date of sentence, subject to standard conditions.
  • Nine-month licence disqualification imposed, not to commence until release from prison.
  • Good behaviour bond (14 December 2016): breach found proved; bond revoked; conviction recorded under s 10A of the Crimes (Sentencing Procedure) Act 1999; no further penalty imposed.

Key Takeaways

  • An early guilty plea to an affray charge attracted a 25% sentencing discount in this District Court proceeding, consistent with the approach in Stevens v The Queen [2007] NSWCCA 152.
  • Where a co-offender inflicts a serious injury during a group affray, a participant who is not directly responsible for that specific act may nonetheless be sentenced for the broader violent conduct; the Crown's concession on that point shaped the sentence here.
  • Form 1 matters (offences taken into account but not separately punished) influenced the head sentence imposed for the substantive affray, reflecting their role in characterising the overall pattern of offending.
  • Breach of a Community Correction Order does not automatically result in a custodial consequence; the District Court here revoked the order and substituted a fresh one with standard conditions.
  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction upon revoking a bond while imposing no further penalty, a course available where the circumstances do not warrant additional punishment.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 10A

Cases:
- Stevens v The Queen [2007] NSWCCA 152