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Katsis v R

Katsis v R

Case [2018] NSWCCA 9 14 February 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Katsis v R [2018] NSWCCA 9
Hearing dates: 1 November 2017
Decision date: 14 February 2018
Before: Hoeben CJ at CL at [1];
Schmidt J at [120];
Campbell J at [121]
Decision:
(1) Leave to appeal against sentence is granted.
(2) The appeal is dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – offences of murder and sexual intercourse without consent – offending occurred in 1988 but not sentenced until December 2015 – victim an elderly woman living in circumstances of social isolation – whether victim should have been regarded as “vulnerable” in accordance with s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether judge properly applied the principles applying to sentencing for historical offences – whether judge should have found special circumstances having regard to the length of non-parole periods imposed during the 1980s – whether judge should have taken into account applicant’s upbringing as bearing upon his moral culpability – whether judge properly took into account by way of mitigation the applicant’s previous good character – grounds of appeal not made out – leave to appeal granted but appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – ss 18, 19, 61D(1), 442
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A, s 44
Probation and Parole Act 1983 (NSW) – s 20A
Cases Cited: AJB v R [2007] NSWCCA 51; 169 A Crim R 32
Bradley v The Queen [2017] VSCA 69
Bugmy v R [2013] HCA 37; 249 CLR 571
CT v R [2017] NSWCCA 15
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Ingrey v R [2016] NSWCCA 31
Longworth v R [2017] NSWCCA 119
MPB v R [2013] NSWCCA 213; 234 A Crim R 576
Munda v Western Australia [2013] HCA 38; 249 CLR 600
PH v R [2009] NSWCCA 161
R v Bossie (Supreme Court (NSW), Studdert J, 16 April 1992, unrep)
R v Dargin [2000] NSWSC 710
R v Fleming [2007] NSWSC 673
R v GDP (1991) 53 A Crim R 112
R v Katsis [2015] NSWSC 1890
R v Kennedy [2000] NSWCCA 527
R v Magnuson [2013] NSWCCA 50
R v Matthews [2014] NSWSC 608
R v MJR [2002] NSWCCA 129; 54 NSWLR 368
R v Sharpe (Supreme Court (NSW) Wood J, 9 September 1992, unrep)
R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740
RL v R [2015] NSWCCA 106
SHR v R [2014] NSWCCA 94
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Alexis Katsis – Applicant
Regina – Respondent Crown
Representation:
Counsel:
G Bashir SC/J Brock – Applicant
N Adams/S Johnson – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2014/157715
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

R v Katsis [2015] NSWSC 1890

Date of Decision:

11 December 2015

Before:

Fagan J

File…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Katsis v R

Details

AGLC: Katsis v R [2018] NSWCCA 9
Case: [2018] NSWCCA 9
Decision Date: 14 February 2018

CaseChat Overview and Summary

The case of Katsis v R involved the appellant, Katsis, appealing against the sentence imposed for two offences of murder and one offence of sexual intercourse without consent, which occurred in 1988 but were only sentenced in December 2015. The victim was an elderly woman living in conditions of social isolation. Katsis appealed on the basis that the sentencing judge had not properly considered the victim's vulnerability under section 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the application of sentencing principles to historical offences, the length of non-parole periods typically imposed during the 1980s as special circumstances, the impact of Katsis' upbringing on his moral culpability, and the consideration of his previous good character as a mitigating factor. The appeal hinged on whether the trial judge's approach to these issues was flawed.

The court was required to determine whether the trial judge had erred in failing to recognise the victim as "vulnerable" under the statutory definition, whether the principles for sentencing historical offences were appropriately applied, and if special circumstances, including the length of non-parole periods in the 1980s, were correctly considered. Additionally, the court examined whether the judge should have taken into account the appellant's upbringing in assessing moral culpability and if the appellant's previous good character was appropriately weighed as a mitigating factor. The overarching issue was whether these errors warranted a reduction in the sentence.

The court found that the trial judge had not erred in any of the grounds of appeal raised by Katsis. The judge had correctly assessed the victim's vulnerability, applied appropriate sentencing principles for historical offences, and considered the relevant special circumstances. The court held that the length of non-parole periods from the 1980s did not constitute a special circumstance in this context. Regarding the appellant's upbringing, the court noted that while such factors could be relevant, they did not warrant a reduction in sentence in this instance. The court also confirmed that the judge had adequately considered the appellant's previous good character as a mitigating factor. Consequently, the appeal was dismissed, and the original sentence was upheld.

No orders were made altering the original sentence. The appeal was dismissed, and the original sentence was confirmed as appropriate.

Orders