Director of Public Prosecutions v Katsakis
[2013] VCC 1321
•4 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
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: | 3 July 2013 | |
DATE OF SENTENCE: | 4 September 2013 | |
CASE MAY BE CITED AS: | DPP v Katsakis | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1321 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence – Guilty plea – Homophobic attack – Offender suffers from schizophrenia, compounded by substance abuse, particularly ice – Intellectual disability – CCO with justice plan.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Fisher | Director of Public Prosecutions |
| For the Accused | Mr M. Stanton | Robert Stary & Associates |
HER HONOUR:
1 On 10 October 2010 you, Anthony Katsakis, along with three friends, Ari Hamie, Rifat Kurtaj and John Daou, went to a nightclub in South Melbourne. Apparently the four of you had gone with the view of finding some girls but you were unsuccessful and instead hatched a plan to find and assault people who were gay.
2 You left the nightclub with that in mind and about 2:20 in what was then the morning of 11 October 2010, you came across two men walking in the street, in Gipps Street, Collingwood. You formed the view that they were, or were likely to be gay, and the group decided to assault them. You stopped the car and that happened. You approached them under a pretext and then, when you were close enough and they were talking to you and they had dropped their guard because you had approached them and spoken to them, all four of you set upon the two men and attacked them. One of the men was punched in the face a number of times, he then fell to the ground and was kicked in his body by the group after he had fallen to the ground. The other man was punched and kicked and he too fell to the ground, and the group of you continued to assault him by kicking and punching him.
3 It is important for you to understand that you are responsible not just for the punches and the kicks that you landed, but also for the punches and kicks inflicted by your three co-offenders, because the four of you hatched a plan to do this, you acted together, and the law makes each of you responsible for the conduct of the lot of you.
4 In the course of the assault, one man was robbed of his wallet and his mobile phone. Even after that man had been robbed of his wallet, you and some of the others continued to assault his companion.
5 The assault went on for some time. It was unprovoked, violent, cruel, a four on two, and continued even after you had obtained money and phones from them, as well as got whatever pleasure the four of you thought you could get out of punching two innocent men.
6 The two of them eventually got free and ran away. They went almost straight to the police. The police rang the mobile phone number of the phone that had been stolen from one of them. Consistently with what you later told the police was your intention, the person who answered the phone, presumably one of the four who had participated in this plan to attack these two men, said things that clearly showed that you were motivated - the group was motivated - by hatred of gay people.
7 Later that morning, you and a number of your co-accused flagged down a taxi, and when you got to your destination tried to pay for the taxi fare with one of the credit cards that was in the wallet stolen from one of the two men you assaulted. That card was declined and the taxi driver then drove you to the Police Station where you and your co-offenders ran away without paying for the fare.
8 As a result of that, you have pleaded guilty to one charge of intentionally causing serious injury to your first victim, Mr Kluver, and recklessly causing serious injury to your second victim, Mr Cundy; to a charge of robbery of Mr Cundy's telephone and wallet; and to a charge of obtaining a financial advantage by deception by attempting to pay for the taxi fare using one of the credit cards from the stolen wallet.
9 You were not arrested for some days and when you were, on 3 November 2010, you were interviewed. Although you initially denied the offending, you eventually told the police that you and your co-accused, whilst you were at the nightclub, had decided to look for some homosexuals to release anger and teach them a lesson. You described the ploy that you and one of your co-accused used in order to lull the people you approached into a false sense of security so you could get close enough to them before they would feel threatened, so you could assault them. You acknowledged openly that what you had approached them in a way that you thought wouldn't intimidate them so you would then have the opportunity to attack.
10 You described your motivation as being because you just wanted to hit them, to get their stuff and described it as a "hustle." You said you wanted to "fuck up their day because they were gay".
11 These are, obviously, serious offences. Mr Kluver received a laceration to his inner lower lip; two lacerations to his external lower lip; his upper right front tooth was pushed back and required significant reconstructive dental work; and he was grazed and bruised to his face and upper body.
12 Mr Cundy received extensive soft tissue injury. He had bruising and soreness to his face, in particular to his right cheek and eye, and to his upper body and left leg. He, too, had a tooth damaged, this one chipped as a result of the assault and he, too, required expensive dental work.
13 The victim impact statements were read in court on the hearing of the plea and described graphically how distressed they were at this unprovoked attack and at the realisation that it was motivated by a hatred of them because of their sexual orientation.
14 The maximum penalties for these offences are some measure of how seriously the law regards them. The charge of intentionally cause serious injury carries a maximum penalty of 20 years; of recklessly causing serious injury, a maximum of 15 years; robbery, too, carries a maximum sentence of 15 years; and the charge of obtaining financial advantage by deception - although this is a low scale example of that - by using the stolen credit card to try to pay for the taxi fare, carries a maximum of ten years.
15 There are some features of real concern in the offending. It was a homophobic attack and s.5(2D)(aaa) of the Sentencing Act 1991 specifically requires the court to have regard in sentencing to whether the offence was motivated wholly or partly by hatred for or prejudice against a group of people with common characteristics with which the victim is associated or thought to be associated.
16 Mr Cundy and Mr Kluver have just as much right to walk in the street and to express their sexuality or to just be who they are as any other person in this community, and no court can accept or tolerate homophobic violent behaviour - attacks of the sort that you and your friends carried out on these men, motivated by such unacceptable prejudicial hatred. The sentence therefore must clearly mark denunciation of that and significant punishment for that.
17 This was also an attack in company where you outnumbered your victims and there was clearly a level of planning in it: the decision whilst you were at the nightclub, the going out and actively seeking someone, the use of the ruse or the ploy to get close so you could attack them, are features of that.
18 You've pleaded guilty to the charges and you are clearly entitled to a reduction in the sentence that otherwise would have been appropriate for these offences. You have saved the time and cost of a trial. However, it is of concern that in the materials that were presented to me and, indeed, in what your counsel said to me on the plea when the matter was first before me, that you were continuing to seek to justify your behaviour by reference to your views against homosexuality or what I would call your unacceptable homophobic views. In my view, you display no remorse for your behaviour.
19 At the time of the offending you were 23 and you are now 26. You have a number of previous convictions, including convictions for robbery and personal violence. In the time between the commission of these offences and the time you come before me for sentence, you have not used your time well. You have been dealt with on two subsequent occasions for dishonesty offences, that is another feature of your previous convictions, and for driving offences.
20 The bare outline of the offending that I have given and the reference to your previous convictions would indicate that, absent other information, you would most likely be looking at a significant term of imprisonment to punish you, to deter you, and others like-minded, who think that they can seek out and attack people for any reason, but particularly because they think they are gay and think they can attack them for that.
21 The fact that you were apparently abusing Ice at the time might have made the likelihood of a significant term of imprisonment even more likely. However, the circumstances of the offending, your previous convictions, your motivation and your drug abuse are not the only relevant factors I must consider in sentencing you.
22 As long ago as 1998, when you were 11, you were found to be suffering from an intellectual disability and a Certificate of Eligibility for Services under the Disability Act, by reason of a diagnosed intellectual disability manifesting itself before age 18, has been provided to me.
23 Your educational engagement was poor and you began abusing drugs and alcohol in your teens. In 2009, at the age of 21 or 22, you were diagnosed as suffering from schizophrenia. Unfortunately, that did not give you insight into the dangers of abusing drugs and alcohol and the effect of those on your mental state. Nor did it appear to give you any will to stop your substance abuse. Nor were you always compliant with the medication prescribed to you to manage your schizophrenia. Not surprisingly, therefore, matters became worse, not better, for you. At some stage you added Ice to the wide range of illicit substances that you had been taking.
24 You have never had any meaningful employment and you express no real desire to obtain work-related skills or experience. You are currently under a Community Treatment Order under the Mental Health Act following a period of involuntary inpatient treatment in late 2012. You are now, as a result of that Community Treatment Order, properly medicated and supervised. Although the medication has stabilised you, the reports provided to me indicate that you lack insight into the nature and severity of your mental illness and the need for medication in order to control it. You continue to use Ice, claiming that it gives you energy and compensates for the lethargy and lack of energy that you believe results from the medication prescribed for the schizophrenia.
25 According to the reports, you want the Community Treatment Order discharged and assert that you would stop taking both anti-schizophrenia medication and Ice if you were discharged. This, in my view, demonstrates what Dr Muirhead, your treating psychiatrist, has said, and is a constant refrain in his reports, that you demonstrate a lack of insight into the nature, severity and extent of your mental illness and demonstrates the need for the Community Treatment Order to remain whilst you continue to hold such views about your mental illness and your desire to be off medication.
26 In his most recent report, dated 22 August, Dr Muirhead, who is the consultant psychiatrist with the Broadmeadows Continuing Care Team with the North Western Area Mental Health Service, said this:
"Unfortunately, the prognosis for Mr Katsakis' mental health is that he is likely to continue experiencing anxiety and dysphoria with an on-going risk of relapse of psychosis while he continues to abuse illicit substances. He is very likely to continue to be unable to maintain gainful employment while this situation persists. It is uncertain to what extent the prognosis would be improved if he were able to maintain abstinence from substance use."
27 You were assessed for the purpose of the plea by the psychologist, Ms Carla Lechner. She noted that you appeared to be cognitively and emotionally immature with a limited ability to reflect on the impact of your behaviour on yourself or on others. She said this:
"He is easily overwhelmed by social and emotional factors as well as his internal thinking processes. All of these factors undermine his already immature judgment and decision-making. He tends to be impulsive in nature and to have a low tolerance for frustration. He is not really able to identify specific triggers to his negative feelings beyond 'my life at the moment I'm bored'. He stated that when intoxicated, he is inclined to become aggressive. He only feels suicidal at the thought of going to gaol."
28 You have in the past been subject to Community-based Orders with Justice Plans attached as a result of your earlier offending and as a reflection of your intellectual disability. Whilst you have apparently complied with the Justice Plan conditions, you have breached your Community-based Orders by either non-compliance or, in the case of the second of the Community-based Orders, by this offending.
29 Your contact with Disability Services has been sporadic but Ms Kelleher, in the Justice Plan prepared at my request following the original plea hearing, reports that there are services available for you which address your offending behaviour and are aimed a reducing your likelihood of re-offending. She recommends three areas in particular. First, case management; second, treatment for drug and alcohol abuse; and third, participation in anger management programs. All of those specifically designed to assist a person with your level of intellectual functioning, rather than ones that are designed for people in the mainstream criminal justice system.
30 It is abundantly clear from all of the reports that unless you can abstain from illicit drug and alcohol abuse, you are at high risk of re-offending, and that means your future will likely involve periods of imprisonment and increasingly longer terms of imprisonment. If, however, you can be assisted to abstain, your risks of re-offending are reduced and the risk to the community of offending committed by you is reduced accordingly.
31 In my view, the needs of denunciation, punishment and deterrence, so far as it is appropriate in your case having regard to your level of intellectual disability and protection of the community, are best met by placing you on a Community Corrections Order with strict conditions addressed to your offending behaviour and which carry a significant punitive element.
32 I am conscious that when Community-based Orders were replaced by Community Corrections Orders, the Attorney-General indicated that it was his intention that offending previously considered too serious to be the subject of a Community-based Order could now be dealt with by the longer term of, and increased range of, conditions available under a Community Corrections Order.
33 I propose, therefore, to release you on a Community Corrections Order with very strict conditions. I must warn you, Mr Katsakis, that if you breach those conditions, you will be brought back before me to be dealt with for the breach and one consequence of that could well be re-sentencing you for these offences and I would have much more limited sentencing options available to me if you breached than are available to me at this stage.
34 The conditions that I propose to impose are these. In addition to the core conditions which require reporting to the Broadmeadows Community Corrections Services within two days of the making of this order; not committing another offence punishable by imprisonment during the time the order is in force; not attending for any of your appointments with Corrections when you are impaired by alcohol or other substances; reporting to and receiving visits from the Secretary; reporting any change of address or job within two days; not leaving Victoria without permission; and obeying all lawful instruction of the Secretary. I am imposing the following conditions specifically tailored to your circumstances.
35 First, that you perform 200 hours of unpaid community work over the first two years of the three year order that I am imposing. I note that if you fail to comply with this part of the order, that is, the unpaid community work, the Secretary to the Department of Justice or their delegate can give you a direction to perform additional unpaid community work as a result of that. I am requiring you to be under the supervision of a Community Corrections Officer for the full three year term of the order.
36 I am making treatment and rehabilitation conditions for drug and alcohol abuse and dependency. They are that you must undergo assessment and treatment including testing for drug abuse or dependency, or alcohol abuse or dependency, as directed by the Regional Manager - I specifically included, but I am not limiting it to, assessment with the Australian Community Support Organisation Community Offender Advice and Treatment Service (ASCO COATS) - or any other service that is deemed appropriate by Disability Justice. And a direction that you follow any recommendations made by ASCO, or any other service, and engage in any treatment as directed.
37 I am also going to order that you must not contact or associate with the three people who you committed the offences with for the three years covered by the order. That is Ali Hamie, Rifat Kurtaj and John Daoul. And I am directing that you must participate in the services specified in the Justice Plan that was provided for two years, that is the maximum that I am able to make that order.
38 The services under the Justice Plan are these. First, that you accept the support of, and engage in further assessment and planning with, your Disability Justice case manager for the duration of the order. Second, that you be referred for and undergo an assessment with ASCO COATS or other services deemed appropriate by Disability Justice, and that you follow the recommendations made by ASCO or other service and engage in treatment as directed. So that is just putting into the Justice Plan what I have already put into the Community Corrections Order about that alcohol and drug treatment. And third, that you engage in treatment and assessment in relation to anger management and impulsivity and follow any recommendations made by Disability Justice.
39 I cannot make this order unless you consent to it and indicate that you have understood its terms and conditions. So what I am going to do now is have that taken down to you and ask Mr Stanton to make sure you understand it, and then have you sign it. Sorry, I left out the final order, which is judicial monitoring. You must attend for review on 5 March 2014 at 9:00AM at the County Court here before me. That is just over six months from now.
40 On the four charges to which you have pleaded guilty: intentionally cause serious injury, recklessly cause serious injury, robbery and obtain a financial advantage by deception, you are convicted. In respect of all four charges, you are placed on a Community Corrections Order for a period of there years commencing today and ending 3 September 2016.
41 The order has these mandatory terms.
You must not commit another offence for which you could be imprisoned during the time that this order is in force.
You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations, that is, not to be impaired by alcohol or substances when you attend any meetings with Corrections.
You must report to, and receive visits from, the Secretary or their delegate. You must report to the Community Corrections Centre at Broadmeadows, 25-27 Dimboola Road, Broadmeadows, within two clear working days after the commencement of this order, that means by Friday of this week.
You must let a Community Corrections Officer know within two clear working days of you changing your address or job.
You must not leave Victoria without first getting permission to do so from the Secretary or Delegate.
You must obey all lawful instructions from and directions of the Secretary or Delegate.
You must perform 200 hours of unpaid community work over a period of two years as directed by the Regional Manager. If you fail to comply with this condition, the Secretary to the Department of Justice or his delegate may give you a direction to perform additional hours of unpaid community work in accordance with s.83AU of the Sentencing Act.
You must be under the supervision of a Community Corrections Officer for a period of three years.
You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the Regional Manager, including but not limited to, assessment with ASCO COATS or other service deemed appropriate by Disability Justice, and to follow the recommendations made by ASCO or other service and engage in treatment as directed.
You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the Regional Manager, including but not limited to assessment with ASCO COATS or other service deemed appropriate by Disability Justice and to follow the recommendations made by ASCO or other service to engage in treatment as directed.
You must not contact or associate with Ali Hamie, Rifat Kurtaj and John Daou for a period of three years.
You must attend this court before me for review on 5 March 2014 at 9:00AM.
You must participate in the services specified in the Justice Plan for two years.
42 Mr Katsakis, I want you to understand that normally, for offending like this, a person will go to gaol. It is because of the combination of your mental illness and your intellectual disability that I am giving you the opportunity to avail yourself of the assistance that is available to you through Corrections, through the Mental Health Act and through Disability Services. However, if the yawning and the stretching and leaning back I have seen this morning displays an attitude of contempt for this opportunity that you have been offered, I want to be very clear, if you do not comply with the terms of your order, you will be brought back before me and if you show an unwillingness or a lack of preparedness to engage with services that may assist you to deal with your problems and to keep you from offending, then there will be no real option available but gaol. Do you understand that?
43 OFFENDER: Yes, Your Honour.
44 HER HONOUR: When a copy of the order has been made and provided to you, you will be free to leave. Mr Stanton, I hope you can explain to your client the significance and consequences of breach.
45 MR STANTON: I will, Your Honour, more than once.
46 HER HONOUR: Thank you No doubt Ms Kelleher will help you too. Sorry, there was also an application for an order for the taking of a forensic sample wasn't there?
47 MR FISHER: Yes, Your Honour, I have a draft form.
48 HER HONOUR: They have already been provided, I think, so I have got it here. Mr Katsakis, I have also been asked to make, and I am going to make, an order that you provide a forensic sample. I going to make that order for the taking of a sample from the mouth, what's call a buccal sample, that involves the rubbing of a swab like a cotton bud on the inside of your mouth until a sufficient sample has been obtained. I must warn you that if you do not co-operate in the provision of that buccal sample, the making of this order then would authorise the police to use reasonable force to obtain it and it is likely that the police would use the more invasive form of obtaining such a sample, namely taking a blood sample. Do you understand that?
49 OFFENDER: Yes.
50 HER HONOUR: Because I am releasing you on a Community Corrections Order, that means you must go to the Broadmeadows Police Station in order to provide that sample. There is a very complicated time frame for that. You must wait for four weeks to pass, and then you must go within four weeks after that. So you cannot go in the first month after the making of the order, you must go in the second month after the making of the order. Again, Mr Stanton will explain that and no doubt tell Ms Kelleher as well and she may well be able to assist you to comply with that.
51 I am making that order because of the seriousness of the circumstances of the offending and your previous convictions. The forensic sample order has been made.
52 MR FISHER: As Your Honour pleases.
53 HER HONOUR: Any further orders?
54 MR FISHER: No, thank you, Your Honour.
55 HER HONOUR: Thank you for your assistance. And thank you again, Ms Kelleher for your assistance and for your attendance.
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