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District Court 20 September 2021

R v Kalathas (Part 2)

[2021] NSWDC 753

Assault & violencePublic order & justice offences
SEE R V MANSOUR R V KALATHAS (PART 1) NSWDC 752

Citation: R v Kalathas (Part 2) [2021] NSWDC 753
Court: District Court of New South Wales
Date: 20 September 2021
Judge(s): Neilson DCJ

Background

The offender was the owner of a steel fixing business. A former employee had made a wages claim against the business for approximately $17,271, and a meeting was arranged at the offender's office in Belmore on 4 July 2019. When the employee arrived, he was prevented from leaving, pressured to sign a document abandoning his wage claim, and physically assaulted by two unidentified men. The offender then told the employee not to take the matter further.

This sentencing hearing followed the conviction and sentencing of a co-offender, Mansour Mansour, dealt with on 15 September 2021. The factual background and findings on objective criminality were recorded in the companion judgment, R v Mansour; R v Kalathas (Part 1) [2021] NSWDC 752. This decision deals solely with the personal circumstances of the offender and the appropriate sentence.

The offender was 38 years old at the time of sentencing. He had four children, maintained a relationship with three sons from a previous marriage and had a young daughter with his current partner. He had effectively no criminal history, with one prior conviction for a driving offence.

Legal Issues

  • What sentence was appropriate for the offence of unlawfully detaining a person without consent, with intent to obtain financial advantage, where actual bodily harm was occasioned?
  • Whether the sentence should be served by way of an Intensive Corrections Order rather than full-time custody.
  • What discount applied for the offender's plea, and whether the 10% offered by the Crown was appropriate.
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory proportion.

Decision

Issue 1: Appropriateness of full-time custody

The court rejected the submission that an Intensive Corrections Order was appropriate. Although the sentence fell within the range permitting an ICO (two years or less), Neilson DCJ held that the nature of the offending required full-time custody (at [18]). The court identified the offence as an employer's resort to violence against an employee seeking to enforce a legitimate wages entitlement, describing this as conduct requiring denunciation and both specific and general deterrence (at [17]-[18]). The court observed that employers must know any resort to violence against employees will result in condign punishment (at [18]).

Issue 2: Starting point, discount, and final sentence

The court set a starting point of 18 months imprisonment (at [19]). A 10% discount for the plea was applied, consistent with the Crown's concession, reducing the sentence to 16 months after rounding down in the offender's favour (at [19]). The offender's submission that he was prevented from entering an earlier plea by his co-offender's intransigence was rejected: a co-offender can negotiate independently with the Crown (at [19]). The sentence was backdated by 27 days to account for pre-bail custody following the offender's arrest on 10 July 2019 (at [5], [19]).

Issue 3: Non-parole period and special circumstances

The court found special circumstances, reducing the non-parole period below the standard statutory proportion (at [20]-[21]). Three factors supported the finding: this was effectively the offender's first experience of imprisonment; rehabilitation is best served by extended supervision in the community during parole; and the onerous conditions of custody during the COVID-19 pandemic, which had prevented family visitation and was particularly burdensome for an offender with young children (at [20]-[21]). The non-parole period was fixed at nine months (at [22]).

Issue 4: Personal circumstances and character

The court acknowledged the offender's prior good character, finding his one prior conviction for a driving offence carried no weight (at [4]). The court also noted a significant recent change in the offender's attitude, including commencement of anger management counselling and a letter expressing remorse, contrasting with more defensive statements made to Community Corrections in August 2021 (at [8]-[10]). The offender's family circumstances and employment aspirations were also taken into account (at [11]-[12]).

Orders Made

  • Convicted of detaining Emmanouel Moustakis without consent, with intent to obtain financial advantage, with actual bodily harm occasioned at the time of detention.
  • Sentenced to imprisonment with a total term of one year and four months.
  • Non-parole period of nine months, commencing 24 August 2021 and expiring 23 May 2022.
  • Balance of sentence of seven months, commencing upon expiration of the non-parole period and expiring 23 December 2022.
  • Special circumstances found.
  • Eligible for consideration for release to parole at the expiration of the non-parole period.

Key Takeaways

  • An employer's use of violence to coerce an employee into abandoning a wages claim was held by the District Court to require full-time custodial punishment, with denunciation and both specific and general deterrence identified as the dominant sentencing purposes (at [17]-[18]).

  • The availability of an Intensive Corrections Order did not guarantee its imposition: even where the sentence fell within the eligible range, the court held that the gravity and nature of the offending precluded the leniency an ICO represents (at [13]-[18]).

  • Special circumstances can be established by combining factors: the court found the combination of a first experience of imprisonment, rehabilitation needs, and the COVID-19 pandemic's effect on custodial conditions collectively justified a non-parole period of nine months on a total sentence of 16 months (at [20]-[21]).

  • Onerous custodial conditions arising from external events such as a pandemic, including restrictions on family visitation, were treated as relevant to the length of the non-parole period, consistent with the principle that such conditions can mitigate the severity of incarceration (at [21]).

  • A co-offender's unwillingness to negotiate a plea does not prevent an individual accused from negotiating independently with the Crown, and cannot be relied upon to justify a larger discount than the Crown concedes (at [19]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Mansour; R v Kalathas (Part 1) [2021] NSWDC 752
- R v Newell [2004] NSWCCA 183