Citation: R v Mansour; R v Kalathas (Part 1) [2021] NSWDC 752
Court: District Court of New South Wales
Date: 15 September 2021
Judge: Neilson DCJ
Background
Two offenders, a construction industry contact of the victim and the owner-operator of a steel fixing business, pleaded guilty to detaining a worker without his consent, while in company, with intent to obtain a financial advantage, during which the victim suffered actual bodily harm. The offence occurred on 4 July 2019 at Belmore, NSW.
The victim had worked for the business for approximately 14 months as a steel fixer, earning around $1,300 per week. After he was effectively stood down without pay and his calls went unanswered, he contacted his trade union, which advised him he was entitled to continued wages. He lodged a claim for $17,271.28 in lost wages and unpaid overtime and told fellow workers he had done so. Two days later, the offence took place.
The victim was lured to the business office under the pretence of a meeting. Once there, the business operator demanded he sign a document relating to the wages dispute. When the victim refused and attempted to leave, he was blocked, choked, punched repeatedly in the face by unknown co-offenders, and forced to sign the document while bleeding. The business operator then warned him not to take the matter further.
Legal Issues
- What was the appropriate sentence for each offender given their differing roles in the offence?
- Whether a community correction order was appropriate for the offender who played the lesser role, rather than a term of imprisonment.
- How the utilitarian value of a late guilty plea should be applied to reduce the head sentence.
Decision
The court treated the two offenders separately, noting that their roles were quite different. The business operator, Kalathas, was the principal beneficiary of the crime and the person whose financial advantage was sought. The other offender, Mansour, played a more peripheral role: he arranged and attended the meeting and blocked the victim's exit, but did not participate in the physical assault.
Neilson DCJ characterised Mansour's offending as falling at the bottom of the range for this type of offence. The court commenced the sentencing exercise with a theoretical head sentence of 12 months' imprisonment. A 10% discount was applied for the utilitarian value of Mansour's late guilty plea, reducing the sentence by approximately two months, with the judge rounding upward to account for the 13 days Mansour had spent in custody on remand. This produced a sentence of 10 months.
The court then considered whether imprisonment was necessary or whether a community correction order was more appropriate. Taking into account Mansour's personal circumstances and the nature of his criminality, the court elected to substitute a 10-month community correction order under section 8(1) of the Crimes (Sentencing Procedure) Act 1999, rather than impose imprisonment.
The judgment records only Mansour's sentence in this published part (Part 1). Kalathas's sentence is addressed separately. The court noted, in principle, that detaining a person represents a serious deprivation of liberty, reflected in the maximum penalty of 25 years' imprisonment under section 86(3) of the Crimes Act 1900.
Orders Made
In respect of Mansour:
- Convicted of the offence under section 86(3) of the Crimes Act 1900.
- Released on a community correction order for a period of 10 months from the date of sentence.
- Conditions of the order:
- Not to commit any offence.
- To appear before the court if called upon to do so at any time during the term of the order.
- To submit to supervision by a Community Corrections officer.
- To report to the Community Corrections officer at Liverpool by telephone within seven days.
Key Takeaways
- A conviction under section 86(3) of the Crimes Act 1900 requires proof of detention without consent, an intent to obtain a financial advantage, and the occasioning of actual bodily harm at the time of detention, all committed while in company. The maximum penalty is 25 years' imprisonment.
- Where offenders in a joint enterprise play materially different roles, the District Court will assess each offender's culpability separately, even where they are sentenced on the same occasion.
- Offending at the lower end of the range for a serious offence does not automatically result in imprisonment. The court found a community correction order was appropriate given Mansour's role and personal circumstances.
- A late guilty plea attracted a 10% utilitarian discount, and the court adjusted the arithmetic upward to account for time already spent in pre-sentence custody.
- Neilson DCJ reaffirmed that detention offences carry significant moral weight, observing that deprivation of liberty is the highest form of punishment known to law, and that the maximum penalty reflects that value.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8(1)
Cases:
- R v Newell [2004] NSWCCA 183