Durante, Kurt Russell v R [2008] NSWDC 350

New South Wales District Court

CITATION: Durante, Kurt Russell v R [2008] NSWDC 350

JUDGMENT DATE: 8 February 2008

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Sentence of the Magistrate is set aside. Appellant is sentenced to a term of imprisonment of 8 months. Execution of the sentence is suspended fully on the appellant entering into a good behaviour bond for the period of 8 months.

CATCHWORDS: CRIMINAL LAW - sentence appeal - affray - conviction - appalling criminal record - at "crossroads" - increase sentence - Parker warning

LEGISLATION CITED: Crimes Act 1900 s 93C Crimes (Appeal and Review) Act 2001 s 20(2)(a)

PARTIES: Kurt Russell Durante R

FILE NUMBER(S): 2007/42/0358

SOLICITORS: Mr Edmunds (appellant) Mr Stanley (NSW DPP)

JUDGMENT

1 The issue raised in this appeal is a difficult one, it raises the question of whether I give a young man who has a deplorable criminal record another opportunity. The effect of the submission made by his solicitor, Mr Edmunds is that his client is at a crossroads in his life and that despite his appalling record he should be given one last opportunity. I propose to accept that submission.

2 When Kurt Russell Durante came before the learned Magistrate sitting at the Local Court at Bega on 5 July 2007 he was charged with affray. He pleaded not guilty to that affray but was convicted. Briefly the affray occurred on Saturday 4 November 2006. It was in Eden, during the Whale Festival. There were show rides and a large crowd of people. A fight broke out between two people. Neither of those was Mr Durante. But at one stage Mr Durante joined in the fight. The learned Magistrate found that his contribution to the fight was to inflict one kick. The result of that was that other people became, even more people became involved in the brawl. Mr Durante was arrested about ten days later and charged.