R v Kalathas (Part 2)

[2021] NSWDC 753

District Court

New South Wales

Medium Neutral Citation:

R v Kalathas (Part 2) [2021] NSWDC 753

Hearing dates:

20 September 2021

Date of orders:

20 September 2021

Decision date:

20 September 2021

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Sentence of imprisonment, with a non-parole period of nine months, commencing on 24 August 2021 and expiring on 23 May 2022. A further period of imprisonment of seven months to commence upon the expiration of the non-parole period and expiring on 23 December 2022. The total sentence is one year and four months, comprising the non‑parole period and the balance of the sentence. Found special circumstances. Eligible to be considered for release to parole at the expiration of the non-parole period.

Catchwords:

See R v Mansour; R v Kalathas (Part 1) [2021] NSWDC 752

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

R v Mansour; R v Kalathas (Part 1) [2021] NSWDC 752

R v Newell [2004] NSWCCA 183

Texts Cited:

Nil.

Category:

Sentence

Parties:

Regina (NSW) - Crown
Themistoklis Demis Kalathas - Offender

Representation:

Crown
Borosh
Offender
Stanton, G.J.

File Number(s):

2019/00214041

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: On 15 September 2021 there stood before me two accused, Mansour Mansour as well as the current offender, Themistoklis Demis Kalathas. At the end of the 15 September I convicted and sentenced Mr Mansour and adjourned Mr Kalathas’ further hearing until today. On the earlier occasion I recited the facts of the case and recited various aspects concerning the objective criminality in the case (see R v Mansour; R v Kalathas (Part 1) [2021] NSWDC 752). I have not canvassed thus far the personal circumstances of Mr Kalathas.

Personal circumstances: Kalathas

2. At the time of the offence Mr Kalathas was 36 years old. He is now 38 years old. The sources of information concerning him include two Sentencing Assessment Reports, one bearing date 16 August 2021 and another report bearing date 13 September 2021, which did not carry the matter any further. There is also a note from Mr Sam Hanna, a counsellor who commenced counselling the offender for anger management on 10 September 2021. However, that counselling generally takes between nine and 12 sessions and Mr Hanna was only able to tell me that he had seen the offender on one occasion. The other sources of information concerning the offender come from his current partner, Miss Katerina Skouras, his sister Cleo Kalathas, and there is a letter from the offender himself.

3. The offender was previously married. As a consequence of his marriage he has three sons who are aged 12, nine and seven. The eldest child is in secondary school, the younger two boys are in primary school. The children live during the week with their mother. They are collected after school on Friday by the offender, who drops his sons back to their mother’s residence on the evening of the Sunday of each weekend. With his current partner the offender has a child born in October 2018. That child is a daughter who is obviously approaching her third birthday.

4. I understand the offender to have been born in Australia and grown up in the western suburbs of Sydney. The offender has only one prior conviction, that is for a driving offence which incurred a fine: that is of no moment in the current circumstances. The offender comes before this Court as man of prior good character and I must weigh that good character in my assessment of the appropriate penalty for the offence which he has committed.

5. It is common ground that after the offender’s arrest on 10 July 2019 he was incarcerated for 27 days before being granted bail, I must take that into consideration as well. In very recent times there has been a remarkable change by the offender in his attitude towards this offence. I shall come back to that consideration.

6. According to the offender’s sister’s testimonial the offender is one of four siblings. He is the only son and therefore has three sisters. Ms Kalathas’ testimonial contains this matter:

“...since his fall from grace, Themi has been assisting me in my shop in Marrickville after hours cleaning the shop and preparing it for the next day. His typical work hours are from 9.30pm to 2.30am. I am proud to have him working for me.

I know of Themi’s charges and was aware of them from the date he was charged in or about July 2019. This was a turning point in his life as it resulted in a significant company losing all major contracts and from that day he no longer traded. This impacted not Themi but also on our family on what was considered a family business. The gaol time served was also hard for him and he has spoken to me about the tough conditions in there and how this all made him realise the value of freedom and what he did in respect to this.

When I speak to Themi about the offence, he tells me that it was a big lesson to know who to trust and who not to as the situation got out of hand quickly and he feels sorry for the victim and the situation he was placed in. It has been hard for him and now looking to re‑start his life.

Themi has found happiness with his new partner and has a baby girl...who is four months old and also cares for his two [three] boys from a previous relationship.”

It maybe that I have misread Ms Katerina Skouras’ reference. It maybe that their relationship commenced in October 2018 rather than that their daughter was born at that time, the daughter I understand to still be very young. Ms Kalathas’ testimonial bears date 11 September 2021 and therefore it would appear that the offender’s daughter is only months rather than years old.

7. The inference to be drawn from what Ms Kalathas says is that she was told by the offender that he had received some advice from someone he trusted which backfired and led to the current offence. A similar history is contained in the testimonial from Ms Skouras. She refers to the offender’s “trusting unfortunately” and being guided by “the wrong people”. Who they may be I do not know. The offender has not given any evidence. Ms Skouras’ testimonial continues in this fashion:

“I know of Themi’s charges as I have been by his side from the beginning of this debacle. I have seen a man quite literally fall to his knees as a result of carelessness and misguidance. Losing his company was one of the hardest things Themi had to endure, and even harder for me to witness. I know for a fact that Themi is remorseful for everything that has happened. His company closed, 180 plus men lost their jobs, families were destroyed, time was wasted and lost and ultimately people got hurt: all this has changed Themi.

For one, prison is not for everybody, and it definitely is not for Themi. However, he put his head down, minded his own business, reflected on his life and actions and did his time. In the eyes of the court that prison time may be short and perhaps not suffice enough as punishment, yet for Themi, it was enough time to understand what had happened and how he could now change his life from that point onwards.

Themi has endured an incredible financial loss which has impacted him and our family immensely. Working for his sister has created some stability in a somewhat hectic time. Themi frequently says to me how he wishes none of this ever happened, how something so careless and stupid resulted in something bigger than he could have ever imagined. He talks about how much time he has lost, and if he could go back, he would do things differently. Not be so trusting and not be so easily coerced.”

Ms Skouras goes on to tell me that in her view the offender has “served his time” for the offence which he committed. I am completely unaware of Ms Skouras’ training or background or work history, but it would not appear that she is a lawyer. However, she does write very well.

8. I return to the offender’s attitude to the offence. The Sentencing Assessment Report dated 16 August 2021 contains this matter:

“. Mr Kalathas’ account of the events leading up to the offence appeared to be inconsistent. He claimed he was unaware of who committed the assault on the victim, then later stated the offences were a result of ‘the situation escalating’.

. Mr Kalathas denied the contents of the police facts. He maintained that he did not intend to physically harm the victim and appeared to justify his offences by stating that he had eventually paid the victim.

. Mr Kalathas claimed that he had requested a meeting with the victim to ‘sort things out’, however he refused to confirm the intention of the meeting.

. Mr Kalathas denied having any relationship to the co-offenders.

. Mr Kalathas maintained that he was unaware of who had committed the assault against the victim.

. Mr Kalathas claimed that his offences were not motivated by financial gain. He maintained that he intended to eventually pay the victim.”

An updated Sentencing Assessment Report was requested for the hearing due to commence on 15 September 2021, but unfortunately there was no opportunity for a further interview for the reasons which are unclear.

9. As I have earlier mentioned, the offender started an anger management program on 10 September 2021. His undated letter to me, which I infer was only recently made, contains this matter:

“I accept full responsibility for my conduct on the date of the offence. I understand that the offences which I have committed have not only affected the life of the victim but have offended the community at large.

I am taking active steps to improve my life and rehabilitate myself. I am currently working at nights assisting my sister in her takeaway shop. It has been a big learning curve for me and after losing my own business it has been difficult for me.

I have also moved in with my partner whom we now share our beautiful baby with. It has given me a new perspective on life.

Your Honour, I regret what occurred and think of what happened regularly. It was a big mistake and I have learnt a big lesson to not involve others and to deal with matters without the need for others to be present and not for others to involve myself in my business”.

I assume the last clause of the last sentence should have been “not for others to involve themselves in my business”.

10. As I said, there is a remarkable change between what the offender told Community Corrections when interviewed in August and what is shown by his recent letter to me and his submitting himself to counselling for anger management.

The Future

11. In the submissions I was told, and I accept, that the offender wishes to return to his usual occupation of steel fixing and eventually wishes to re‑establish a business of the same type that was lost following upon the interaction that he had with the victim in his office on 4 July 2019. The inference to be drawn is that he is not currently working as a steel fixer, because of the COVID-19 lockdown. According to records before me the offender is living in Dulwich Hill or somewhere near thereto. I have been told and I accept, that the offender had about a fortnight ago his first AstraZeneca vaccination. That clearly will need to be repeated within the next few months.

12. Whether the offender is able to re-establish a steel fixing business would largely depend upon the attitude of the workforce to him and in particular those who represent the workforce, the Trade Union movement. It may be difficult for him to re-establish a business in the steel fixing area given the assault on the victim. Clearly he did not physically assault the victim, but he was part of a criminal enterprise to do so.

An ICO?

13. I have been addressed at some length by learned counsel for the offender as to the imposition of an Intensive Corrections Order (“ICO”). I have thought deeply about that issue. I have formed the view that the sentence to be imposed is two years or less and therefore an ICO is available. It is to be recalled that I sentenced the co-offender Mansour Mansour, whose circumstances were very different to those of the current offender, to a ten month Community Corrections Order (“Community Corrections Order”), having determined that a sentence of one year’s imprisonment was appropriate, that that should be discounted by 10% and rounded up in Mr Mansour’s favour and that it could be served by way of a CCO pursuant to s 8 of the Crimes (Sentencing Procedure) Act1999.

14. However, the authorities admit, as does common sense, that an ICO contains in itself an amount of leniency. Any prison sentence to be served other than fulltime custody carries within itself an element of leniency. The question here is whether such leniency should be allowed? The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act1999, they are these:

“(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.”

It appears to me in this case that considerations of specific and general deterrence loom large as well denunciation of the conduct involved.

15. It is to be recalled that the victim, Emmanouel Moustakis, was employed by Nitro Steel Fixing, the offender’s business. Mr Moustakis was himself a steel fixer. He commenced working on 27 May 2018. There was no work available for him after 2 June 2019, that is after he had worked for the offender’s company for over a year. When he was unable to obtain further work he made enquiries, and when consulting his Trade Union was advised that he was entitled claim for wages that he did not receive when no work was available and also for wages for overtime that the victim said he had not been paid for. The victim made a claim on the employer for $17,271.28. Some two days later a meeting was arranged between Mr Moustakis and the current offender in the office of the current offender’s business in Belmore. Besides Mr Mansour Mansour there were two other employees present, Mr Emmanuel Roussoumelos and Mr Vasilio Karelis. When the victim entered the office he sat next the current offender and had a piece of paper placed before him and was told to sign it. He refused to do so and sought to leave. Mansour Mansour prevented his doing that and the offender was then physically assaulted by two unidentified men that I referred to in submissions as “goons” or the they could also be described as “thugs” or they might be described as “enforcers”. The only rational inference to draw is that these people were assembled for this meeting by this offender, who wanted the victim to sign a piece of paper relating to his claim for what he said was unpaid wages. He refused to do so and was then violently assaulted. He then commenced to sign the paper and was then told by this offender “Don’t take this any further. If you are smart it will stay here”. That is a clear threat to the victim not to report what occurred to him to the authorities.

16. The only person to gain from this interaction would have been the current offender, because it appears that this paper that he had the victim sign was to abandon the claim for unpaid wages. Subsequently money was paid to the victim, but not the full amount that he is claiming. One can understand that that might be the subject of civil litigation. However, the fact remains that this assembling of persons could only have been done by the offender for the offender’s own purpose. One could infer that the offender’s business may have been in trouble if he were unable to provide a permanent member of his workforce with work and was unable to pay an outstanding claim for wages. However, that is irrelevant. The important point to note is the offender sought to impose his will upon an employee by means of violence.

17. The history of the late nineteenth century and much of the twentieth century concerns attempts to regulate industrial relationships and to protect the rights of workers. Initially it was to fix the minimum working age, then to fix maximum working hours, then to fix minimum wages, then to improve working conditions, then to provide for things such as workers compensation on a no fault basis, to provide for annual leave, long serve leave and sick leave, to provide means for arbitration of industrial disputes, to cut out any attempt by employers to enforce their will upon employees by means of violence, and in more recent times to prevent organised labour from seeking to enforce its will upon employers.

Consideration

18. The resort to violence by an employer against an employee in the circumstances shown in the current case is one that requires denunciation and also requires both specific and general deterrence. Employers must know that any resort to violence against employees will result in condign punishment. I am afraid that only a sentence of fulltime custody is in my view permissible in the current circumstances.

19. I start the present sentencing hearing with a sentence of 18 months imprisonment. That the offender is entitled to a discount of 10% of that sentence. That has been conceded by the Crown. There is a quibble about the extent of the discount by learned counsel for the offender, because he maintains that this offender was prevented from negotiating at an earlier time with the Crown because of intransigence of his co-offender or his co-offender’s lawyers. However, such intransigence does not stop a co-offender negotiating independently with the Crown. I, therefore, accept the 10% discount submitted by the Crown. That reduces, after rounding down in favour of the offender, the sentence to 16 months imprisonment. That will be backdated to commence 27  days from today.

20. The question then becomes what should be the non-parole period? Applying the statutory nexus the non-parole period should be 12 months imprisonment. I accept, however, that there are special circumstances in this case. I am perhaps going to be somewhat bold. Special circumstances are generally related to the need for rehabilitation. It is often said that the first experience of imprisonment is one that attracts special circumstances, but the authorities make it clear that it is in fact the need for rehabilitation. Here this will be the offender’s, effectively, first sentence of imprisonment and one can understand that the experience of incarceration will be onerous and rehabilitation is best served by prolonged supervision of the offender in the community whilst on parole.

21. However, there are other circumstances which in my view apply. Onerous conditions of incarceration can lead to a lesser sentence. If it can lead to a lesser sentence then it could, in my view, logically lead to a lesser non-parole period. The circumstances here are the COVID-19 pandemic which has caused mischief, to put the matter mildly, in the Correctional system and has made it more onerous, and, for example, has stopped visitation by family members to those incarcerated. Fortunately Corrective Services are keeping prisoners vaccinated, so I am confident that the offender will receive his second AstraZeneca vaccination whilst in custody. However, he will not benefit from visitation by his children by his marriage or by his baby the result of his current relationship. Introducing young children into the custodial system is hardly beneficial to them. Those circumstances warrant a lesser non-parole period. I have formed the view that the appropriate non-parole period should be nine months imprisonment.

22. Themistoklis Kalathas, of the charge that on the fourth day of July 2019, at Belmore in this State, while in the company of Mansour Mansour you detained Emmanouel Moustakis without his consent with intent to obtain an advantage, namely, a financial advantage, and immediately at the time of the detaining actual bodily harm was occasioned to Emmanuel Moustakis you are convicted. I sentence you to imprisonment. I set a non-parole period of nine months, commencing on 24 August 2021 and expiring on 23 May 2022. I impose a further period of imprisonment of seven months to commence upon the expiration of the non-parole period and expiring on 23 December 2022. The total sentence is, therefore, one year and four months, comprising the non‑parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period.

Decision last updated: 17 March 2022