R v Katakouzinos [2020] NSWDC 115

District Court New South Wales

Medium Neutral Citation: R v Katakouzinos [2020] NSWDC 115 Hearing dates: 3/3/20, 9/3/20 Date of orders: 09 March 2020 Decision date: 09 March 2020 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Sentenced to imprisonment for two years nine months with a non-parole period of one year nine months. Catchwords: Crime – Sentence – Affray- Demand money with menaces Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Stevens v The Queen [2007] NSWCCA 152 Category: Sentence Parties: DPP (Crown) Zak Katakouzinos (Offender) Representation: Mr M Dickinson (Solicitor) for Crown Ms D Hawkins (Counsel) for the Offender File Number(s): 2018/137224 Publication restriction: None

sentence 1. The offender, Zak Katakouzinos, is for sentence in relation to an offence of Affray committed on 10 September 2017 which carries a maximum penalty of ten years imprisonment. In addition he asks that the Court take into account two other offences, one being another offence of affray and the other an offence of demand money with menaces. He pleaded guilty to the substantive affray offence at an early stage and therefore is entitled to a discount of 25% on any sentence that I impose. 2. As a result of these offences the offender also admits to the breach of a good behaviour bond imposed on him in the Local Court on 14 December 2016 and to the breach of a Community Correction Order imposed in the Local Court on 28 November 2018. In relation to the affray offence for which I must sentence Mr Katakouzinos an Agreed Statement of Facts has been admitted on sentence which sets out the circumstances of that affray offence which relevantly are as follows: 3. At about 8.17pm on 10 September 2017 the offender and three associates, Karoush Atashi, Harrison Clarke and Michael Watt arrived at The Ettamogah hotel at Kellyville Ridge. At about 9.15pm they were joined by another associate Alen Mansour and an unidentified female. Prior to the arrival of the offender and his associates, four other men, Connor O'Donnell, Mark Furey, Connor Furey and Mark McGrory had been drinking at the hotel for some hours. As a result they were all intoxicated. 4. None of these men were known to the offender or his group. At about quarter to 10 that night one of the four men, Connor O'Donnell, made some sort of sexual advance towards a female who was part of this offender's group. In response, the group of men, including this offender, began shouting at O'Donnell and moving towards him. Mark Furey attempted to move O'Donnell away from the approaching group of men but they prevented him from doing this. A group of four men, including this offender, Alen Mansour, Harrison Clarke and Karoush Atashi continued to close in on O'Donnell, some of them swinging punches and others brandishing chairs. 5. In the affray which then followed, it was not possible to determine which of the offenders landed precisely which blows. One of the offenders, however, threw a glass at Connor Furey which missed. However, Mr Furey was then knocked to the ground and punched and kicked. One of the co offenders hit Mark McGrory in the ribs with a chair and then two or three of the co offenders began punching him. Although McGrory threw one defensive punch, this had no effect, and he then put his hands up to protect himself while the group of co offenders, including this offender, continued to attack him. 6. Also during the affray one of the co-offenders broke a beer glass and used it to severely lacerate O'Donnell's right ear. O'Donnell was knocked to the ground and several co-offenders kicked him while he was on the floor. While the prosecution is unable to say which of the co-offenders was responsible for the wounding of O'Donnell, it concedes that this offender was not directly responsible. After O'Donnell fell to the floor Atashi picked up a broken beer glass from a table and yelled repeatedly at him, "Have you learned your lesson yet? Do you want some more?" 7. Hotel staff rushed into the area and the two groups were separated. Shortly after, a member of the bar staff told the offenders that she was calling the police and that they should leave. While the group of offenders was being escorted from the hotel, Alen Mansour moved aggressively towards a security guard and said to him, "Don't be a tough guy or I'll shoot you in the face." However, it is conceded by the Crown that this childish and cowardly remark is not part of the affray for which this offender is to be sentenced. 8. After the group of co offenders departed the hotel bar, staff locked the doors and provided first aid to the injured men including O'Donnell who was taken to Westmead Hospital. At the hospital it was found that his right ear had almost completely been severed and was attached only by the remains of his ear lobe. Cartilage of his ear had been exposed by the laceration breaching the dermis. On 12 September 2017 he underwent surgery to re-attach his right ear and was discharged from hospital that day. 9. Police attended the hotel at about midnight and commenced an investigation. They found only small fragments of glass which were not suitable for forensic analysis. Although police obtained CCTV footage which showed the offenders being ejected from the hotel, there was no CCTV coverage of the area in which the affray occurred. On 18 April 2018 police obtained an induced statement from an associate of the co offenders who told police of a conversation with Mansour which occurred in October 2017 in which Mansour had said, "Me and the boys were at the pub. There were some drunk Irish blokes there, and they walked behind a girl one of the boys was with. We had a fight with them." 10. Mansour had also given the associate a jumper which had some blood on it and asked him to dispose of it, that being a jumper that he had been wearing on the night of the affray. That jumper as described by the associate who spoke to police matched a jumper depicted on the hotel CCTV. On 8 February 2019, Michael Watt, who was accompanying the offender and the other three co offenders at the time of the affray, provided an induced statement to police in which he identified the four men. The offender was arrested on 2 May 2018 and his co-offenders the day before. They all refused to be interviewed by police. 11. As I already noted, the offender asks that in sentencing for the affray offence that I take into account two other offences, one being demand money with menaces, that being an offence on 15 February 2018. This offence is also the subject of an Agreed Statement of Facts. Relevantly the facts are as follows: 12. In January 2017 the victim, Mr Whelan, became aware that Liam Peters, a friend of his brother, was receiving threats from Harrison Clarke because he owed Clarke money. The victim and Harrison Clarke are the same age and had known each other since they were 15 years of age. The victim decided to contact Clarke to try to de-escalate the situation involving his brother's friend. I pause to note that Harrison Clarke was one of the four offenders who subsequently took part in the affray at The Ettamogah hotel to which I have just referred. The victim telephoned Clarke in January 2017 and in the course of his conversation with Clarke an unknown person took the phone from Clarke and said to the victim, "Your brother's mate, tell him we want $5,000 by tomorrow and if he doesn't give us the money by then then you have to pay us." 13. In response, the victim indicated that he would do what he could to get Liam Peters to pay the money. The next day Clarke called the victim and asked, "Is this guy gonna pay me my money?" Although these conversations initially were friendly, a few days later Clarke started telling the victim that because he had involved himself he now had to pay the outstanding money himself. These harassing calls and texts continued for about another week. On 2 February 2017 Clarke sent a message to the victim which said, "Ask your mate where is my money bro." The victim indicated that he would call his friend and reply as soon as possible, to which Clarke replied by message indicating, "Tomorrow morning at the latest." 14. On 4 February 2017, which was a Saturday, the victim sent a message to Clarke which said, "Just went to the bank and it is shut bro, I can't get it before Monday" to which Clarke replied, "Banks open till 12." Two days later on 6 February 2017, the victim sent a message to Clarke saying, "Liam's mates called me yesterday and said they are paying you this week and told me to stay out of it. I'm not helping anyone anymore because I'm getting fucked over without doing anything wrong." Clarke, however, replied with a message that said: 15. "Listen here you full of shit cunt you fuckin have my fuckin money today. Then I'll sort these cunts out. You're getting fucked over coz u got involved. U will also give me addresses and phone numbers." 16. The victim did not reply to this charming message. Three days later on 9 February 2017, Clarke texted the victim saying, "Five by Friday." The victim felt threatened and anxious about these text messages and blocked Clarke's mobile number. He had no further contact with Clarke for the next 12 months. At the time of these events Harrison Clarke was a member of the so-called motorcycle gang, "the Finks". On 12 February 2017 Clarke received a phone call from Tim Martin, another member of "the Finks" who at the time was imprisoned in Goulburn Gaol. In the course of that conversation Martin asked Clarke whether he, "got that money out of the little cunt, Whelan." Clarke explained that there had been a few problems but that he had obtained, Whelan's address yesterday. 17. At about 6.40pm on 15 February 2018 the victim met a friend at the Dural Hotel. While he was seated in an outdoor area having a drink with his friend he saw Harrison Clarke walking up the driveway talking on a mobile phone. Clarke apparently bought a beer and then approached the victim initially exchanging pleasantries. However, Clarke then asked the victim's friend to leave so they could have a private conversation. At that time he said words to the effect of: "You have to understand that you've embarrassed me. I know we were friends but you've said you were going to do something and you didn't do it, you are going to pay me my money and you didn't get me my money so you've made me look like an idiot. It could've been much worse when it first happened. There's other people that are really unhappy about it." 1. The victim then saw a car pull up outside the hotel and saw Alen Mansour and the offender get out of the car and walk straight over to where Clarke was sitting with the victim. Another man also got out of the car and walked towards where the victim was standing but stood slightly further away and out of the victim's eyesight. Mansour then sat down across from the victim while the offender stood nearby. Mansour lent towards the victim and said words to the effect of: "We're not the sort of people you should be fucking with. You think we're not going to do anything you're stupid. I'll put bullets in your family, bullets in your house. You disrespected my brother. I don't care, glass you in front of all these people. I'll put you in the car in front of all these people." 1. When referring to glassing the victim Mansour pointed to an empty beer glass on the table. He then said to Clarke, "Let's take him for a drive. Come in the car we'll go for a drive." The victim felt very intimidated and thought that he was about to be subjected to violence. Clarke then asked the victim, "How much money can you give me tonight?" When the victim said he could only provide $300 Clarke demanded to be shown details of his bank account and then accused him of lying. Ultimately, Clarke demanded that he get, "six grand by tomorrow" and told the victim to go to the bank and get $6,000. 2. At this point Clarke, Mansour and the current offender walked a few metres away and were whispering to each other before returning when Mansour said to the victim something to the effect of, "Shit, I can't believe you're not getting glassed right now. This is what's going to happen." Mansour then pointed to the current offender and said, "You're gonna meet this guy. You can give him your number, you can meet him here tomorrow. What time do you finish work?" The victim said he finished work at about 4.30 and in response Mansour said, "You're meeting here tomorrow at 6 and you're going to have $6,000." 3. The victim agreed to this arrangement because he was worried that the three males would not let him go if he did not agree. He was also told that he had three to four weeks to get them an additional $4,000. The offender was then called over by Mansour and the victim gave him his phone number. The offender dialled the victim's phone with his own phone and hung up so that the victim would have his number on his phone. The current offender, then looked the victim in the eyes and said, "You're gonna be here at 6pm tomorrow with the money?" 4. The victim said, "Yes" and shortly after the victim finished his drink and then walked to where the offender was still seated in the hotel and asked if he needed to say anything to the other men before he left. The offender replied, "No, it's fine, see you here tomorrow." After this the offender, Mansour and Clarke left the hotel. The next day the victim did not return to the hotel although he received several phone calls from unknown numbers throughout the day which he did not answer. Three days later on 19 February 2018 the victim reported the matter to police and gave detailed descriptions of the three males who had approached him at the Dural Hotel, including descriptions of tattoos worn by Mansour and Clarke. 5. Police arrested this offender as well as Mansour and Clarke on 1 May 2018. They all declined to be interviewed. After being arrested on 1 May 2018 the offender was taken into custody where he remains to date. 6. On the morning of 31 December 2018, while the offender was being held at Goulburn Correctional Centre, he became involved in a fist fight with another inmate by the name of Randall Bugmy. As this fight continued, other inmates became involved including Mitchell Hadden who tried to kick Bugmy but instead kicked another person who had intervened and at that point Harrison Clarke, to whom I have referred in relation to the facts of the other two offences described earlier, involved himself and started throwing punches at the head of Bugmy. At the same time the offender and Hadden also advanced on Bugmy. The offence just described was captured on CCTV. 7. The affray, however, continued out of camera view for a short time before all inmates began walking back towards where the fight had commenced, although small skirmishes continued between various other inmates. Corrective Services staff called for assistance and ultimately managed to subdue the inmates. The offender as well as Hadden, Clarke and Bugmy were given medical treatment. The offender was noted to have an abrasion to the side of his head and a small bleeding cut on the back of his head. 8. Bugmy had a swollen hand, said to have been the result of an incident in the yard. The offender admitted that he had engaged in a, "fight or other physical combat" and was confined to his cell for seven days. In addition, he was penalised for a period for 28 days in which certain privileges were removed, namely contact visits, buy-ups, phone calls, television, and leisure activity. Subsequently, police from Strike Force Raptor became aware of the incident and commenced investigations. 9. Police obtained information from health records and other records relating to the affray. In addition, police listened to calls which were lawfully recorded from within the correctional facilities. From these it was revealed that the offender, Hadden, and Clarke had each made calls in which they made admissions to being involved in the affray. In one telephone call the offender was heard to say, "There was a big brawl in the yard, I'm going to get back and stomp on one of their fucking heads". 10. The objective seriousness of the offence of affray is marked by firstly the maximum penalty of ten years and it is noteworthy that this was in recent years increased from a maximum of five years. The maximum penalty is, of course, a legislative guidepost in the sentencing exercise I must carry out. As was noted by the Court of Criminal Appeal in Stevens v The Queen [2007] NSWCCA 152 it is necessary in sentencing for an offence of affray to have regard to the level of violence involved in the entire episode rather than to focus merely on the conduct of an individual offender. 11. That, of course, makes sense because the essence of the offence of affray focusses on conduct arising from the event as a whole which would cause a person of reasonable firmness to fear for their personal safety. Regard should be had, not only to the nature of the violent conduct involved in the affray, but should also include matters such as its duration, the size of the area over which it occurred, whether any weapons were used, whether there was any planning involved and whether members of the public were present and the ages and vulnerability of any person exposed to the episode. 12. The affray at The Ettamogah hotel took place in an area where members of the public as well as hotel staff were present and did involve the use of makeshift weapons, namely chairs and broken beer glasses. It also involved the use of a broken glass to cause a severe wound to Mr O'Donnell's ear. On the other hand it appears to have been of fairly short duration, involved a limited number, namely four, participants and arose spontaneously and partly due to the intoxication of one or more of the men against whom the violence was perpetrated. Although, in making that comment I do not suggest in any way that excuses the offending. In my opinion the relative seriousness of this offence sits at around the midrange. 13. The offender is currently 23 years of age. His objective circumstances are set out in a report by Dr Olav Nielssen as well as in a number of medical reports and a medicolegal report by Dr Rikard-Bell, psychiatrist, prepared for the Family Court of Australia on 31 August 2010 when the offender was only aged about 14 or 13. The offender also gave evidence on sentence. 14. The report of Dr Nielssen indicates that the offender had an uneventful early childhood and that he did well in primary school although he said he was picked on a lot at school and there were problems at home between his parents. The offender left school in year 9 to start an apprenticeship as a diesel mechanic and completed three years of training although he did not finish the associated TAFE course. The offender's parents separated when he was about nine and it is clear that there was considerable ongoing conflict arising from the separation and the Family Court proceedings concerning the children. After the separation the offender lived with his mother but had some contact with his father. 15. A medicolegal report prepared by Dr Rikard-Bell for the Family Court in August 2010 indicates that there were significant difficulties in the relationship between the offender and his father. The offender told the psychiatrist in relation to his father that, "He puts me down, he hits me" and that he picked on him and said things indicating to the offender that his father thought he was no good. 16. Ultimately, the conclusion reached by Dr Rikard-Bell was that both parents cared a great deal about their children but that the offender's father, while perhaps well-meaning, had been overly strict with the offender which had led to significant damage to their relationship. It is clear from the evidence that I have read and heard that the strict attitude of the offender's father, which was at times quite bullying and manipulative has had a very negative effect on the offender who grew up feeling that he was not really valued by his father. 17. A significant feature in the offender's background is the fact that in his early teens he was diagnosed as having attention deficit hyperactivity, oppositional defiance, and a mild Tourette's condition. The offender was placed on various medications when he was younger but, as he told Dr Nielssen, he eventually just stopped taking them. In 2014 he had an admission to Cumberland Psychiatric Hospital for about a month and in relation to that time he told Dr Nielssen that he was, "full on delusional" and was having hallucinations. 18. Ultimately however, the final diagnosis, as the offender understood it, was one of drug induced psychosis and his symptoms resolved completely and there had been no further episodes of psychosis. Dr Nielssen's recent diagnoses are that the offender had substance use disorder but that that condition is in remission as well as a depressive illness which is in partial remission. Ultimately, Dr Nielssen said that the offender would appear to have a relatively good prognosis and good prospects of rehabilitation. In this regard, he noted that the offender has reasonably constructive plans to address his drug use in the future and to find work. 19. The offender gave evidence on sentence as to the fact that he had previously worked extensively in the building trade and hoped to return to this type of work upon his release from prison. Having seen the offender in the witness box I formed the opinion that he is an intelligent man who, like a lot of young men his age, is still trying to find his right place in life. 20. It is very positive that he has recently commenced a course in relation to understanding drug addiction and that he has strong supports from his girlfriend and his mother and other family members. I note that he intends to live with his girlfriend on his release and that his mother said she will give him every support she can. In my opinion he has expressed genuine remorse and his prospects of rehabilitation are reasonably good although these will, as the offender accepted, depend largely on whether he can stay away from drugs, get himself a job and not associate with criminals such as those referred to in the Statement of Facts. 21. It is necessary that I give consideration to questions of parity with respect to penalties imposed on others insofar as they are relevant to the offence for which I must sentence this offender. In this regard, I note that Harrison Clarke and Karoush Atashi are yet to be sentenced in relation to the affray offence at The Ettamogah hotel. I further note that on 18 December 2019 his Honour Judge Smith SC sentenced Alen Mansour to an aggregate term of three years six months with a non-parole period of one year 11 months. Mr Mansour was, at the time of his offences, the so-called President of the north-west chapter of the Finks motorcycle gang. 22. However, the sentencing of Mr Mansour involved an offence of detain for advantage in company which carried a maximum penalty of 25 years imprisonment as well as an offence of "direct activities of a criminal group" and also an offence of affray which related to the affray at The Ettamogah hotel. Mr Mansour also had two offences which were taken into account on a Form 1 document and received a 45% discount on account of his plea of guilty and other matters. 23. In relation to the affray offence, that is The Ettamogah hotel offence, I note that Judge Smith nominated an indicative sentence before discount of three years for that offence. When considering questions of parity it is, of course, important that I compare like with like and I accept that the circumstances of Mr Mansour's sentencing involve some differences when compared with the matters on which I must sentence the current offender. Nonetheless I have taken into account for parity purposes the indicative sentence of three years which was nominated in his case in connection with the affray offence at The Ettamogah hotel. 24. In determining the sentence to be imposed on this offender, I have taken into account the fact that in connection with the affray at Goulburn Prison he has already been subjected to some level of punishment, namely the internal penalties which were imposed upon him. 25. Clearly, it is important for the Court to give considerable weight to the importance of deterrence, in other words the need to deter this offender and the need to deter others from committing offences of this kind. Barbaric actions like these have no place in this civilised society. 26. The offence is one where the only appropriate penalty is full-time imprisonment. In determining the sentence I find special circumstances for varying the normal ratio between non-parole period and head sentence. Special circumstances are made out in this case because of the fact that this is the offender's first time in custody as well as his relatively young age and his fairly good prospects of rehabilitation. In determining the sentence I have taken into account the two offences on the Form 1 documents which are in themselves relatively serious and must add somewhat to the total term that I impose. 27. In addition, I have been asked to deal with the offender in relation to the breach of two court orders. The first one relates to a s 10 bond which was imposed by the Parramatta Local Court on 14 December 2016 for a period of 18 months. That bond was imposed in relation to two offences of possessing prohibited drugs which were committed on 27 October 2016 when the offender was found sitting in a car at Kellyville and when searched was found to be in possession of a quantity of 2.5 grams of cocaine and 9.4 grams of cannabis. 28. The second court order that is the subject of breach action is a Community Correction Order which was imposed by the Parramatta Local Court on 28 November 2018 for an offence of drive while cancelled which was committed on 1 August 2018. I note that the offender, through his counsel, acknowledges the breach of the two orders to which I have made reference. I find those breaches proved. 29. In relation to the Community Correction Order imposed on 28 November 2018 I revoke that order and I impose a Community Correction Order for a period of 12 months commencing today. That order will be subject to the standard conditions, namely that the offender must not commit any offence and secondly that he must appear before the Court if called on to do so at any time during the term of the order. I also impose a period of disqualification for nine months commencing today although I note that as a result of statutory provisions that disqualification will not commence until the offender is released from prison. 30. In relation to the s 10 bond imposed by the Parramatta Local Court on 14 December 2016 for drug possession I find that breach proved. I revoke that bond, and pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 I convict the offender but I impose no other penalty. 31. Now, Mr Katakouzinos can you just stand up for a moment and I will just tell you what the sentence is that I must impose on you. On the affray offence, taking into account the plea of guilty and the matters on the Form 1 documents I impose a sentence of two years nine months, that is the head sentence. I set a non-parole period of one year nine months. Each of those will date from 17 August 2018. The head sentence will expire on 16 May 2021 and the non-parole period will expire on 16 May 2020. All right, you can take a seat. 32. So, what that means is that you will be eligible for consideration of parole in just over two months if you behave yourself. So it is most important that you do that obviously. Whether you will be granted parole on that day is not for me to decide, as you will probably realise that is a matter for the parole authorities to decide.