Durante, Kurt Russell v The Queen

[2008] NSWDC 350

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.

3 The crime of affray is a serious one, it is contained in s 93C of the Crimes Act 1900 NSW. It involves a person using or threatening unlawful violence towards another, whose conduct is such as would cause a person of reasonable firmness at the scene to fear for their personal safety. Parliament has attached a maximum sentence of ten years to that offence. It shows how serious Parliament regards that kind of behaviour. I note of course that my jurisdictional limit, because it is being dealt with summarily, is two years. The maximum penalty attached by Parliament indicates how serious the offence is.

4 As I said Mr Durante has an appalling record for a young man who is turning twenty-eight this year. Passing over his convictions as a minor, he has committed criminal offences almost every year since becoming an adult. He has committed offences in 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005 and this offence in 2006. He has been before the Local Court mostly at Eden. He has had the benefit of bonds, fines and suspended sentences. He has appealed to the District Court in various matters and has had some success. The crimes that he has committed involve matters of violence and include common assault, behaving in an offensive manner, assaulting police and contravening apprehended domestic violence orders as well as maliciously damaging property and traffic offences involving alcohol.

5 The affray committed by him on 4 November 2006 was just the last example. It is a more serious crime than some of the others, if not all of the others, that he has committed. To my mind he was fortunate to receive from the Magistrate a sentence as low as a fixed term of two months. I am not critical of the learned Magistrate because his Honour evidently found that Mr Durante’s participation in the affray was limited to one kick so that I can understand his Honour regarding the crime in this case as relatively low in objective seriousness.

6 Mr Edmunds called his client to give evidence today. He acknowledged his poor record. He indicated that he had left school at year 9 and that he suffered a significant hearing loss at the age of round eleven or twelve, that has been recently attended to and he wears a hearing aid.

7 The point which I made at the beginning of these remarks about the crossroads arises in this way. Mr Durante has recently secured employment. This is his first real job, he has never had full time paid employment. Exhibit 1 is a letter from Mr Mick Leiter dated 31 January 2008. It verifies that Mr Durante started casual work last week on 5 February 2008. The work was as a concreter with Mr Leiter. Mr Durante tells me that although is now employed casually he anticipates that he may be able to gain full time employment. Mr Durante volunteered to me that this is his first real job and he is happy; he thinks it will keep him out of trouble. His trouble has been contributed to in the past by the fact that there has been no work for him and there is nothing for him to do. I also wonder, although I cannot find, whether his deafness which has recently been treated, may have also contributed to his wayward behaviour; but as I say that is an idle speculation on my part.

8 In cross-examination by Mr Stanley for the respondent prosecutor, Mr Durante acknowledged his bad record of violence and offences involving alcohol. He acknowledged that he has not done much about his anger management and has slowed down his drinking. He acknowledged that he has had opportunities in the past. Once again when being cross-examined he said that he was looking forward to getting full time work and it was the first job he had ever had and he really liked it. Asked whether he would be prepared to undergo programs for anger management and alcohol problems treatment he said that he would.

9 In light of Mr Durante’s record I would normally have little hesitation in dismissing the appeal and confirming the Magistrate’s sentence of two months full time imprisonment. But Mr Edmunds has put up a submission which involves an alternative. He has submitted that I could increase the sentence, but suspend it to enable Mr Durante to take this opportunity, his first, to engage in regular, full time paid employment which may well be a turning point in his life. The evidence from Mr Durante, which I accept - I was impressed by him as a witness - confirms this.

10 I am prepared to allow him this opportunity. I appreciate that I am taking some risk so far as the community is concerned by allowing Mr Durante his freedom. When he has been given his freedom in the past, on occasions he has abused that and found himself in fights. This puts members of the community at risk. I am conscious of the risk that I am taking in allowing him this opportunity. Nevertheless I have been persuaded by Mr Edmunds and by his client’s evidence that this is an appropriate course. Mr Stanley realistically does not oppose this course. I respectfully agree with his position.

11 I administered a short time ago what is conventionally known as a Parker warning to Mr Durante. I indicated to him the choices which I had. I indicated to him that submission was going to be put to me that he should be sentenced to eight months imprisonment but that that should be suspended. I explained to him the risk that that exposed him to, that he could end up in full time imprisonment for up to eight months, that is four times more than the Magistrate imposed upon him, but that on the other hand he could have eight months of freedom and undertake his work. Mr Edmunds took instructions and informed me that his client understood and that he maintained his submission that an eight month suspended sentence would be sought. As I have said I am prepared to accept that submission and I propose to uphold the appeal.

12 The formal orders which I make are these. Under s 20(2)(a) of the Crimes (Appeal and Review) Act 2001 I determine this appeal against sentence by setting aside the sentence of the learned Magistrate. Instead of that sentence, I impose a sentence of imprisonment on Mr Durante of eight months and I make an order suspending the execution of the whole of that sentence for the whole of the term and I direct that Mr Durante be released from custody on condition that he enters into a good behaviour bond for the period of eight months.

The bond is to contain the following conditions.

1. that Mr Durante, during the term of the bond, will be of good behaviour.
2. that Mr Durante will appear before the court if called upon to do so at any time during the term of the bond.
3. that Mr Durante will inform the Registrar of this court of any change of his residential address during the term of the bond.
4. that Mr Durante subject himself to the supervision of the New South Wales Probation and Parole Service for the duration of the bond and that he accept any reasonable directions or recommendations made by an officer of that Service regarding anger management and alcohol consumption courses.

Have a seat Mr Durante. I direct that Mr Durante report to the office of the Probation and Parole Service at Bega on or before next Friday 15 February 2008 at 4pm. Anything else?

STANLEY: No your Honour.

HIS HONOUR: The sentence, I do not specify the commencement date of the sentence anymore do I Mr Stanley, if it is a suspended sentence of eight months. I do not specify a commencement date do I?

STANLEY: No it is evident that it commences the day in the event your Honour.

HIS HONOUR: The bond is to commence today 8 February 2008. Any other orders or directions?

STANLEY: No your Honour.

EDMUNDS: No your Honour.

13 Mr Durante just stand up. In a sense you have won your appeal, in a sense you have lost your appeal. I have increased the sentence but I have suspended it. You do not have to go to gaol. I have given you a bond, but you have got an eight month sentence hanging over your head. If you breach the bond you will come back before me or before another judge and there is every chance you will go to gaol full time, all right, so it is in your interests to get back with that employment and to carry on with your work which you are enjoying and to stay out of trouble. And I have also made it a condition that you go to Probation and Parole and that you accept their directions so far as any courses for anger management and alcohol that will help you, that plus the work is going to help you and may turn your life around. We will see. You have got to tell this court if you change your address, you have got to stay out of trouble - be of good behaviour - for the next eight months because if you do not you will back here and going to gaol almost certainly. Do you understand that?

APPELLANT: Yes.

HIS HONOUR: Anything else Mr Edmunds or Mr Stanley?

EDMUNDS: No thank you your Honour.

STANLEY: No your Honour.

HIS HONOUR: Thank you both very much for your assistance. Good luck Mr Durante.

APPELLANT: Thank you very much.

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