Director of Public Prosecutions v Katsakis

[2014] VCC 966

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-12-00507

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY KATSAKIS

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2014 and 30 June 2014
DATE OF SENTENCE:	30 June 2014
CASE MAY BE CITED AS:	DPP v Katsakis
MEDIUM NEUTRAL CITATION:	[2014] VCC 966

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. McKay	OPP
For the Offender	Ms G. Morgan	Robert Starys Criminal Lawyers
For Corrections	Ms S. Bruschi

HER HONOUR: 

1Anthony Katsakis, on 4 September last year, I placed you on a three‑year Community Correction Order following your pleas of guilty to one charge of intentionally causing serious injury, one of recklessly causing serious injury, one of robbery and one of obtaining a financial advantage by deception.  The reasons why I did that were set out extensively in my reasons for sentence on that day and I will not repeat them here, but I adopt them.

2Unfortunately, the opportunities that I hoped you would be able to take advantage of under that CCO were not availed of by you and, within a very short time of your being placed on that Community Correction Order you were committing further offences and failing to comply with the other conditions of the Community Correction Order.  By 9 December of last year when you were arrested and remanded in custody in respect of charges of armed robbery, assault and obtaining a financial advantage by deception, you had by then at least two other sets of pending charges and had breached your Community Correction Order, by failing to perform unpaid community work, failing to under treatment and rehabilitation as directed, and failing to submit to supervision monitoring and management as directed.

3Much of this was due to your continued use of ice and your lack of insight into your mental health issues.  It is clear that you were given significant support and assistance, but partly through your own disability and partly through wilful choice on your part, you just were not prepared or able to remain illicit‑drug free and offence free. 

4As a result of the more serious offences in respect of which you were remanded, you have pleaded guilty to and have been sentenced by His Honour Judge Stuart to a total effective sentence of three years and five months, with a 22 month non‑parole period.  Therefore, it was acknowledged there is no realistic option for me other than to cancel the Community Correction Order by reason of the commission of further offences and non‑compliance, re‑sentence you for the original offences and do that by sentencing you to a term of imprisonment. 

5I take into account the same matters that I took into account in imposing the original Community Correction Order to mitigate the extent to which otherwise the sentence would have reflected specific deterrence and general deterrence because of your combination of mental illness and intellectual disability.  I consider though, that there is still a need for the sentence to reflect denunciation of your conduct, and to reflect specific and general deterrence, although the weight to be given to each of those should be moderated; and also to reflect and acknowledge that imprisonment will be, in some ways, more onerous for you because of the combination of the intellectual disability and mental illness than it would for somebody who did not suffer that combination of the intellectual disability and mental illness.

6Yours is one of the sad cases where containment in a custodial setting may actually provide you with the means of breaking the cycle, of keeping you drug free, of assisting an improvement in your mental health, and assisting a gathering or growing insight into your mental health needs and to the importance of abstaining from illicit drug use because of its risk of compounding your mental health problems.  You have got a long way to go on that, but I hope that you will continue to build on, what appears to be the insight or improvement in your condition generally that I have been told about.

7Normally, with wholesale breaches of a Community Correction Order, I would consider imposing a separate penalty, but having regard to the penalties I am going to impose for the original offences, I am simply going to find that the breach is proven, but not impose any additional penalty.  I do that because in my view, it would be appropriate were you not in custody, to fine you for breach, rather than to impose a term of imprisonment.  I consider a term of imprisonment would be excessive in the circumstances and I am not going to - for the sake of convenience because you are already serving a term of imprisonment - impose a term that would run concurrently with your other sentences.  That would reflect on your record even more serious breaches than those which have occurred and which would not appropriately take into account your mental health and intellectual disabilities that are so connected with your offending.  It is not to minimise the importance of the breach or to devalue that, but simply because of your particular circumstances. 

8I also want to place on record that it seems from the breach report that Corrections was sensitive to your needs and worked very well to try liaise with Ms Kelleher and intellectual disability services, appropriate drug and alcohol services and other counselling services for you and did all they could with somebody who was not willing to accept the help to try and keep them working within a Community Correction Order and in a community based custodial setting, rather than breaching on the first opportunity.  So I want to acknowledge the work that Corrections has done in that.

9I formally now find the breach proven and cancel the Community Correction Order.

10Can you please stand, Mr Katsakis?

11On the original offences to which you pleaded guilty, you are re‑sentenced as follows.  On the charge of intentionally cause serious injury, you are convicted and sentenced to be imprisoned for a period of 18 months.  On the charge of recklessly cause serious injury, you are convicted and sentenced to be imprisoned for a period of 12 months and I direct that six months of that be served cumulatively upon the sentence on intentionally cause serious injury.  On the charge of robbery, you are convicted and sentenced to be imprisoned for a period of 12 months and I direct that six months of that also be served cumulatively upon the sentence on intentionally cause serious injury and the partial cumulation order for the recklessly cause serious injury.  On the charge of obtaining a financial advantage by deception, you are sentenced to be imprisoned for a period of one month.

12That makes a total effective sentence of two years and six months and I direct that one year and six months of that be served cumulatively upon the sentences that you are currently undergoing.  I fix a new non‑parole period taking into account the fact that you have already had a non‑parole period imposed by His Honour Judge Stuart and taking into account the, in effect, unexpired portion of that and the need to have some extra time for the non‑parole period.  In respect of these offences, I fix a new single non‑parole period commencing today of two years and six months. 

13Pursuant to s.6AAA of the Sentencing Act 1991 I declare that but for your original pleas of guilty in respect of these charges I would have sentenced you to a total effective sentence of four years imprisonment.  I am not going to say anything in respect of the non‑parole period because that is obviously affected by the new single non‑parole period of the supervening events. 

14Are there any further orders that are required to be made or any further declarations?

15MS MORGAN:  No, Your Honour.

16MS McKAY:  No, I do not believe so, Your Honour, no.

17HER HONOUR:  Right, thank you.  Thank you, Ms Bruschi, that is all you are required for.  Thank you for your attendance.

18MS BRUSCHI:  Thank you.

19HER HONOUR:  I have got another matter I am afraid, Ms Morgan, so I cannot stay on the bench while you or your client's mother speak to him.  You will have to go down to the cells, but I will stay briefly so Mr Katsakis' mother and Ms Kelleher can speak briefly to him.  Ms Kelleher, do you want to speak to Mr Katsakis?  Ms Kelleher, Ms Morgan will go down and explain the sentence to him.  Are you able to get access downstairs, Ms Kelleher?

20MS KELLEHER:  No, Your Honour. 

21HER HONOUR:  All right, thank you.  Remove Mr Katsakis, please.

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