R v Mansour; R v Kalathas (Part 1)

[2021] NSWDC 752

District Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

15 September 2021

Date of orders:

15 September 2021

Decision date:

15 September 2021

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Released on a community correction order for a period of 10 months from today. Conditions of the order are as follows:

(1)   You are not to commit any offence;

(2)   You are to appear before the Court if called upon to deal so at any time during the term of the community corrections order;

(3)   You are to submit to supervision by Community Corrections officer; and

(4)   You are to report to the Community Corrections officer at Liverpool by telephone within seven days.

Catchwords:

CRIME – Mansour and Kalathas pleaded guilty to detaining Emmanouel Moustakis without his consent with intent to obtain a financial advantage and at the time of the detention Emmanouel Moustakis suffered actual bodily harm, the offenders being in company – Offence against Crimes Act 1900 s 86(3) for which the maximum penalty was imprisonment for 25 years – Role of each of the offenders was quite different and the crime was committed for Kalathas’ financial advantage – Each offender had different personal circumstances.

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

R v Newell [2004] NSWCCA 183

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (NSW) - Crown
Mansour Mansour – First offender
Themistoklis Demis Kalathas – Second offender

Representation:

Crown
Borosh
First offender
Woods, P.F.
Second offender
Stanton, G.J.

File Number(s):

2019/00209686
2019/00214041

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Mansour Mansour and Themistoklis Demis Kalathas stand for sentence as a consequence of having pleaded to guilty to a charge that on the fourth day of July 2019 at Belmore in this State, while in company of each other each, detained Emmanouel Moustakis without his consent and with an intent to obtain an advantage, namely a financial advantage, and immediately at the time of the detaining, actual bodily harm was occasioned to Emmanouel Moustakis. That is an offence contrary to s 86(3) of the Crimes Act1900. The maximum penalty for that offence is imprisonment for 25 years.

Facts

2. There is a set of agreed facts before me. I shall refer in this recitation of facts to Mr Emmanouel Moustakis as the victim. On 27 May 2018 the victim found employment with Nitro Steel Fixing as a “steel fixer”. He worked for that company for approximately 14 months. He worked approximately seven hours per day for six days each week and earned approximately $1,300 per week. The agreed facts do not tell me whether that was gross or net. The victim’s employment was organised by somebody known to the victim as “Michael”, another employee of Nitro Steel Fixing.

3. According to an admission made by Mr Kalathas on 10 July 2019 set out in [27] of the agreed facts, the business belonged to Mr Themistoklis Kalathas. However, elsewhere it is described as being his father’s business, and there is reference in the evidence to Mr Mick Kalathas, who may be Mr Kalathas’ father. In any event I shall in due course point out that the company was essentially run by the offender, Themistoklis Kalathas.

4. From time-to-time the victim would attend the company office at 327 Belmore Road, Belmore. When he did so he met Mr Mick Kalathas and his son, Themistoklis Kalathas, who was generally referred to as Themi. During his period of employment the victim worked overtime each week but maintained that he was not paid for the overtime worked. On 2 June 2019, after the victim had been working for Nitro Steel Fixing for over a year, the employee known as Michael sent a text message to the victim saying that there was no work available to him on the following day.

5. Over the following few weeks the victim stayed at home waiting to be advised of work available to him. He attempted to call both Michael and Mr Themistoklis Kalathas however his calls were not answered. On 2 July 2019 the victim received a call from the employee known as Michael, during which Michael told him to “go on holidays to Greece and when you get back we will see if there is any work”. The victim did not take a holiday in Greece but phoned his trade union and asked for advice. A union organiser advised the victim that, as he was a fulltime employee, he should be receiving his wage each week regardless of whether there was any work available for him or not.

6. Acting on that advice the victim completed an application seeking $17,271.28 for lost wages and unpaid overtime. The victim sent text messages to a number of his fellow workers and told them that he had been to the union and filled out a lost wages form.

7. The offence in question occurred two days later. At about 2pm on 4 July 2019 the victim was at home. He received a phone call from Mansour Mansour. Mr Mansour was known to the victim and he was also known to Mr Themistoklis Kalathas. Their knowing each other was due to their mutual involvement in the construction industry. The victim told Mr Mansour that he would be available in a few hours. At about 7:00pm on 4 July 2019, the victim received a further phone call from Mr Mansour arranging for the victim to be picked up in order to attend a meeting with Themistoklis Kalathas.

8. About 20 minutes later the victim heard a knock at his door and when he opened the door he saw another man, Emmanuel Roussounelos. Roussounelos told the victim “Let’s go”. It is unclear whether that was in English or Greek. The victim followed Mr Roussounelos to a utility truck which had the name “Nitro” written on its side. Another employee of Nitro Steel Fixing, Mr Vasilio Karelis, was in the driver’s seat. The victim entered the car and it was driven to the Nitro Steel Fixing office at Belmore.       

9. After arriving at the location, the victim saw Mr Mansour on the footpath near the front of the Nitro Steel Fixing office. Mr Mansour asked the victim:

“Do you have a knife, do you have something. I don’t want trouble”.

That indicates to me that Mr Mansour was concerned that there might be some “trouble”, some dispute arising at the meeting which was about to take place. I assume that the victim answered that question in the negative, that he did not have possession of any implement that could cause a problem.

10. The victim and Mr Mansour then walked through the door into the office. Inside the office the victim saw a tall man of Middle Eastern appearance who is known as “the first unknown offender”. That man searched the victim and patted down his body. He also was obviously concerned that the victim may have an implement, such as a knife, upon his person.

11. Within the office was a long table and three chairs. Themistoklis Kalathas was sitting at the end of the table. Behind him stood Emmanuel Roussounelos. The victim took the seat next to Mr Kalathas and Mr Mansour sat next to the victim. There was another unknown male of Middle Eastern appearance behind the victim who is known as “the second unknown offender”. The first unknown offender also stood behind the victim. Mr Vasilio Karelis was also present at the meeting.

12. The victim saw a piece of paper and a pen on the table. Kalathas pointed to the paper and said to the victim “Put your signature”. That is not idiomatic English. I assume it represents a literal translation from Greek. The victim refused to sign the paper and asked if that was the reason he had been brought to the office. Kalathas said to him, “You have to sign it”. The agreed facts tell me that the paper referred to the dispute between Nitro Steel Fixing and the victim concerning unpaid wages and unpaid overtime.

13. The victim then stood up and walked towards the door. Mansour stepped in front of the victim and blocked his exit. That effectively amounted to the detention of the victim in the office in question. The victim then felt an arm around his neck. He was choked and punched in the left eye. The victim was then forced to sit back on the chair that he had vacated and, as he did so, he saw that it was the first unknown offender who had assaulted him. The first unknown offender was angry and said to the victim “sign” while pointing at the piece of paper. The victim again said that he would not.

14. The victim then felt both his hands being grabbed and pulled behind his back. The victim saw the second unknown offender had hold of him. The male holding the victim stood up and turned the victim towards the first unknown offender. The first unknown offender then punched the victim in the face four or five times. He hit the victim in the mouth near his left eye and on the right side of his head near the right eye. The victim began to bleed with blood running down his face and onto his jacket. The victim was then again pushed back into his chair.

15. Kalathas then again said “Put your signature” and pointed at the pen and the piece of paper. The victim picked up the pen and began to sign it. The victim is right handed and the first unknown offender noticed that. It appears that the victim was attempting to sign the piece of paper using his left hand. The first unknown offender then told him to use his other hand. The victim changed hands and signed his name on the piece of paper using the pen. The victim did not read the paper and was unsure as to what it said. The first unknown offender obtained another piece of paper and told the victim to sign that as well. He then told Kalathas to “check the signature on the computer”. Kalathas used the computer and stated that it was indeed the victim’s signature.

16. After the victim had signed the paper Kalathas looked at him and said “Don’t take this any further, if you are smart it will stay here”. That is clearly a threat designed to stop the offender making a complaint to the police or somebody else in authority such as a trade union representative.

17. Later that evening at 8:10pm the victim called his trade union to obtain advice. He was told to call the police. The victim then received a call from a friend who is also gifted a Greek name. The victim told his friend what had happened and his friend contacted the police by dialling 000. Police and an ambulance attended at the victim’s home. The victim was taken to hospital where he was admitted for two days.

18. It is agreed that he suffered the following injuries: a subconjunctival haemorrhage, that is a bleeding into the white of one of his eyes; two wounds across the left eyebrow approximately two centimetres in length; bruising to his right cheek and a laceration of his right upper lip. Those injuries amount to actual bodily harm.

Investigation

19. Police attended the office of Nitro Steel Fixing and a crime scene was declared. Police obtained a crime scene warrant. Although the premises were searched no exhibits were seized. Subsequent police enquiries at the crime scene found that the premises were fitted with a closed-circuit television (“CCTV”) system but the hard drive from that system had been removed. The police then canvassed surrounding businesses seeking CCTV footage. Investigators found the Olive Café, which was across the road from the crime scene, had a CCTV system but the hard drive had been taken from that system. Investigators then attended a Greek club next door to the crime scene and found that it had a CCTV system which covered the entrance to the crime scene. The investigators became aware that the owner of the club had removed the hard drive system on or about 4 July, claiming the system was faulty.

Arrest and bail

20. On 5 July 2019 police attended an address in Chipping Norton and Mr Mansour Mansour was arrested and conveyed to Liverpool Police Station, where he participated in an electronically recorded interview. During that interview he denied any involvement in the offence.

21. On 10 July 2019 police attended an address in Condell Park and arrested the offender, Kalathas. He was conveyed to Bankstown Police Station where he took part in an electronically recorded interview. In the interview he agreed that he had his own business, it was called Nitro, and that the victim had been employed by that company in the past. When asked what sort of employment he had, the offender said that he did not know and he had to check it. He then declined to answer any further questions regarding the allegations that had been made by the victim.

22. At some stage after these events the victim was paid money owed to him by Nitro Steel Fixing for unpaid wages. However, a claim for unpaid overtime remains outstanding and according to the agreed facts is the subject of civil litigation but there is scant evidence concerning that.

23. Mansour Mansour spent 13 days in custody. He was in custody between 6 and 17 July 2019 and then again in custody on 6 and 7 October 2019. Themistoklis Kalathas was imprisoned for 27 days between 10 July 2019 and 5 August 2019. On their release from custody each of the offenders was admitted to bail.

Aftermath

24. In evidence in Mr Kalathas’ case is a letter from his current de facto wife, Ms Katerina Skouras. She makes it clear that as a result of the arrest and incarceration of the offender, Kalathas, his company had to close, losing all its work. According to her testimonial over 180 men lost their jobs, “families were destroyed, time was wasted and lost and ultimately people got hurt”. It would appear that the business of Nitro Steel Fixing collapsed because the offender was incarcerated and probably because of retaliatory action by the workforce in answer to the violence perpetrated on the victim.

25. There is in evidence in each case a victim impact statement of over three pages. I have read it. If one takes it literally the effect of the assault upon the victim has had a significant impact on his life. However, some of the statements that he made appear to indicate that he has made heavier weather of it than one would expect. One can also read in it a reference to his needing treatment from medical practitioners and psychologists for a period from July 2019 until May 2021. He needed that assistance to seek to recover from the effects of the assault upon him.

Seriousness

26. Section 86 of the Crimes Act1900 bears a heading “Kidnapping”. The basic offence involves the taking and detaining of a person without that person’s consent but with the intent to do one of a number of things. For the basic crime the penalty is 14 years imprisonment. Subsection (2) provides for an aggravated offence, the circumstance of aggravation being the infliction of actual bodily harm. The maximum penalty for that offence is imprisonment for 20 years. Section 86(3) deals with the specifically aggravated offence and occurs where there had been an aggravated offence which his caused by a person being in company with another. The maximum penalty, as I said, for that offence is imprisonment for 25 years.

27. Pertinent to considering the criminality of those who commit this offence, the relevant factors are the duration of the detention, the amount of violence involved, the circumstances of the detention, the person being detained and the purpose of the detention. Leaving aside the question of violence, those relevant features are identified in R v Newell [2004] NSWCCA 183 at [32].

28. Here the period of detention was relatively short. According to the Crown’s submissions, it would not have extended beyond 30 minutes. Indeed, it may not have extended beyond 10 minutes.

29. The circumstances of the detention were not particularly significant in that the detention period was so short that one does not need to consider whether the bed was comfortable, whether there were sanitary facilities available, whether there was natural light and air or whether the person was confined in a dark, dank cell. There was a short period of detention in an office.

30. The next thing to be considered is the person being detained. Here the person being detained was an employee of a company, the principal of which was the offender Kalathas. An employer has an amount of power over any of his, her, or its, employees. The fact that the person being detained, the victim, was an employee of one of the offenders, is as far as that offender is concerned, of significance in the Court’s view.

31. The purpose of the detention was obviously the financial interest of Mr Kalathas’ business. The only rational inference to be drawn is that he wanted the victim to withdraw his claim for unpaid wages and unpaid overtime. It was in the financial interest of Mr Kalathas and his business.

32. Here being in company was not merely the two offenders currently before me but the two unidentified offenders who perpetrated the physical violence upon the victim as well as at least two other, I infer, employees of the Nitro Steel Fixing. Certainly the agreed facts tell me that Vasilio Karelis was an employee of Nitro Steel Fixing and the inference to be drawn from [10] of the agreed facts is that Emmanuel Roussounelos was also an employee of the company. The fact that the victim was confronted by four offenders in the presence of two others who, it might be thought, would support the employer is in my view also a significant. The greater the perceived threat, the greater intimidation visited upon the victim.

33. However, the offences under s 86 cover a very large field. There are persons who can be detained against their will, not merely for hours or days, but for weeks or months. There can be people detained for lengthy periods in a house or a motel or locked up in a shed in someone’s backyard or detained somewhere on a country property. The violence visited could be over a protracted period of time and, for example, the detention might involve being bound by ropes or tied or confined within a narrow space or being held within something equivalent to a gaol cell.

34. It is common ground between the parties that as far as Mr Mansour was concerned this was right at the bottom of the range for offences contrary to s 86(3). Bearing in mind the length of the detention, one could also say that the offence committed by the offender Kalathas was also towards the bottom of the range. The thing that distinguishes the role of Mr Mansour and Mr Kalathas is that it would appear that Mr Mansour was recruited for this “exercise” by Kalathas as were the two unidentified assailants who, during the course of submissions, I referred to as “goons” and there was no protest from anybody to my using that term to decide these persons who might be common thugs.

Personal circumstances: Mansour

35. I turn then to consider Mr Mansour’s personal circumstances. At the time of the offence Mr Mansour was one day short of his 50th birthday. He is now 52 years old. He is a married man, having been married to Mrs Lorraine Mansour for 23 years. They have six children. He has, in recent times, became a grandfather. His eldest daughter, Savah, is married and has a four month old child. His second child, Yasmin, is an arts student at TAFE and still lives at home with her parents, as do the four younger siblings. His eldest son, Hussein, is an apprentice plumber and lives at home. His 13 year old son, Isaac, is at school in Year 8. His 10 year old son, Jacob, is in school in Year 5. His youngest child, a daughter Zahra, is in Year 3.

36. Mrs Mansour is an enrolled nurse and is currently during valuable work for the community in the COVID relief team at the Sydney Children’s Hospital at Westmead. She works four days per week.

37. According to a sentencing assessment report Mr Mansour is self‑employed fulltime and has been contracting his services as a carpenter and also has a role supervising carpentry work, which he has held for some 18 months. He also performs another task of carrying out business audits to ensure that companies are compliant with best business practice. It would appear that it was in that way that he came into contact with Nitro Steel Fixing and Mr Kalathas. However, there is another link between the two. Mr Mansour is an instructor in taekwondo and has taught, amongst others, Mr Kalathas’ children that martial art.

35. Mr Mansour only has one prior conviction, that is, a driving offence. It is of no current concern. Essentially Mr Mansour is a man of prior good character who became, it would appear almost unwittingly, involved in this crime.

36. In the past Mr Mansour has been of great assistance to the community. Exhibit 2 in his case is a citation awarded to him by the Commander of the Ashfield Local Area Command of the New South Wales Police. The citation bears the date 23 March 2012. The citation is this:

“In recognition of his assistance given to police during an arrest of an offender at Brown Street, Ashfield, on 13 July 2010. The offender was yelling and assaulting police and Mr Mansour, who was watching the incident, came to aide police in restraining the offender. Police and Mr Mansour restrained the offender until further police arrived. Mr Mansour displayed courage and a sense of community responsibility in apprehending the offender who was violent and abusive. Mr Mansour is commended for his cooperation and actions”.

This is the first offender that I have seen in the 20 years I have been sitting in crime who could put such a document before Court.

40. The offender has also placed before me copies of recently acquired responsible service of alcohol and responsible conduct of gambling certificates as well as a supervisor certificate for carpentry and the renovation of kitchens, bathrooms and laundries issued by the New South Wales Department of Fair Trading and current until next year.

41. There is in evidence a testimonial from a Justice of the Peace who has known the offender for some 11 years. He had worked with the offender on a construction site in Epping over the last 12 months. The Justice of the Peace said this:

“I know Mr Mansour as an honest, respectful and motivated person who is held in high esteem by his clients, peers and the community generally.

I have observed Mr Mansour over the years to be a very dedicated family man and dedicated to his work as a builder/carpenter. I have also seen him demonstrate compassion and caring for others.

Since I have been made aware of Mr Mansour’s charge we have had many discussions. Mr Mansour is remorseful and regretful of the unfortunate situation he got himself into. After viewing Mr Mansour’s charge my opinion of his character does not change”.

The remorse and regret of Mr Mansour includes insight, acknowledging the victim would have been stressed by what happened to him and an acknowledgment that the victim did not reserve to be physically assaulted as he was in Mr Mansour’s presence.

42. There is also in evidence in Mr Mansour’s favour a testimonial concerning his work in taekwondo. That is made by a gentleman who has known the offender for 30 years through the taekwondo community. His reference says this:

“Mansour is also training in the Olympic sport of Taekwondo with profound achievements in this sport which teaches discipline and mind control and fitness. Mansour sets a good example for colleagues and he is always delighted to help. I have attended Mr Mansour’s training hall and have found he always teaches the right lectures of being a good community model, and training all to be Healthy and wise and have a better future”.

43. Prior to following his current calling it is clear from another reference that Mr Mansour was involved in the security business. There is in evidence a letter from Mr Wayne Baker who currently resides in Queensland and works for the Queensland Government. He has so worked for the last 14 years. However, he has known Mr Mansour for 30 years. His reference says this:

“I personally know him both on a professional and personal basis over this time. I personally worked with Mr Mansour in the Security Industry for 10 years. During this period Mr Mansour successfully owned and managed True Blue and Canterbury District Security Companies, supplying both static, mobile and personal security guards.

Mr Mansour conducted his business with both the highest level of professionalism and integrity. At all times abiding with the current legislation and licencing laws. At no time during this period did Mr Mansour come to the attention of police for aggressive behaviour or the use of excessive force”.

Later in the testimonial Mr Baker refers to the offender being well respected in the community. Mr Baker is aware of the offence for which the offender stands for sentence. He said this:

“Mr Mansour is remorseful and regrets what has occurred. This behaviour is totally out of character. He was unsuspectedly someone who was drawn into a situation he now regrets being involved in and if he knew would turn out the way it did would not have become involved. Mr Mansour is very remorseful and this whole matter has cost him dearly, impacting on his health, his time, his relationship with his wife, children and grandchild and reputation within the community. Mr Mansour not only feels that he has let himself down, but more so his family, friends and community”.

44. There are a number of other testimonials which speak of the offender’s role as a father and husband and of the value of his work in the community and especially in regard to assisting children in particular with the sport of taekwondo which helps them in discipline and community awareness. I accept that as far as Mansour Mansour is concerned this offence was out of character. I accept that the prospect of the offender again offending is low, the corollary of that is, I accept, that the risk of recidivism is extremely low and therefore the prospects of rehabilitation are good. The sentencing assessment report says that the offender has a T1/low risk of reoffending.

Consideration - Mansour

45. In Mr Mansour’s case I must bear in mind that he was the person who commenced the detention by not permitting the victim to leave the office, leading to his subsequently being assaulted by others. The detention of somebody, the deprivation of their liberty, is the highest form of punishment known to our law. The highest penalty that can be imposed is imprisonment for life, that is detention against a person’s will for the rest of their natural life. Detaining anybody is a significant crime and one can see the maximum penalty reflecting that value.

46. In Mr Mansour’s case, as I said, I accept that his offending was at the bottom of the range. Nevertheless I believe that I should commence the sentencing exercise with a theoretical head sentence of one year’s imprisonment. It is agreed between Mr Mansour and the Crown that he is entitled to obtain a discount of 10% of that sentence for the utilitarian value of his late plea of guilty. 10% of 12 months is 1.2 months, I round that up to two months, especially bearing in mind that the offender spent 13 days in custody before being granted bail. That reduces the sentence to 10 months imprisonment.

47. The Crimes (Sentencing Procedure) Act 1999 provides in s 8(1):

“Instead of imposing a sentence of imprisonment on an offender, a Court that has convicted a person of an offence may make a community correction order in relation to the offender”.

I have formed the view that given the personal circumstances of Mr Mansour and the nature of his criminality that I should, rather than sentencing him to imprisonment for 10 months, impose a community corrections order for a period of 10 months.

48. Mansour Mansour, on the charge that on 4 July 2019 at Belmore in this State while in company of Themistoklis Demis Kalathas and others you detained Emmanouel Moustakis without his consent and with intent to obtain an advantage, namely financial advantage, and immediately at the time of the detaining actual bodily harm was occasioned to Emmanouel Moustakis, you are convicted.

Sentence

49. Under the s 8 of the Crimes (Sentencing Procedure) Act1999 I order that you be released on a community correction order for a period of 10 months from today. Conditions of the order are as follows:

1. You are not to commit any offence;

2. You are to appear before the Court if called upon to deal so at any time during the term of the community corrections order;

3. You are to submit to supervision by Community Corrections officer; and

4. You are to report to the Community Corrections officer at Liverpool by telephone within seven days.

Decision last updated: 17 March 2022