Abounader v The Queen - [2013] NSWCCA 106

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Abounader v R [2013] NSWCCA 106
Hearing dates: 22 April 2013
Decision date: 16 May 2013
Before: Price J; Davies J; Barr AJ
Decision:
1. Grant leave to appeal
2. Dismiss the appeal

Catchwords: CRIMINAL LAW: sentence appeal - riot- fight between warring motorcycle clubs- guilty plea- parity- whether justifiable sense of grievance- offer of guilty plea rejected by Crown- whether discount sufficient.
Legislation Cited: Crimes Act 1900
Cases Cited: Green v The Queen [2011] HCA 49
Jimmy v R [2010] NSWCCA 60
Khan v R [2012] NSWCCA 132
R v Eken; R v Potrus [2012] NSWSC 2
R v Kisacanin [2012] NSWSC 91
Tatana v R [2006] NSWCCA 398
Category: Principal judgment
Parties: Farres Abounader (Applicant)
Regina (Respondent)
Representation: Counsel:
T Game SC (Applicant)
J A Girdham SC (Respondent)
Solicitors:
AHA Taylor Lawyers (Applicant
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/64354
Decision under appeal

Citation:

R v Abounader [2012] NSWSC 1312

Date of Decision:

2012-10-26 00:00:00

Before:

R A Hulme J

File Number(s):

2009/64354

Judgment

THE COURT: The applicant, Farres Abounader seeks leave to appeal against sentences imposed by R A Hulme J following his plea of guilty to a charge of riot contrary to s 93 (1) (b) Crimes Act 1900. His Honour sentenced the applicant to imprisonment for six years, commencing on 24 December 2009 and expiring on 23 December 2015 and set a non-parole period of four years, expiring on 23 December 2013.

The Facts

The charge arose out of the part played by the applicant in hostilities that broke out between rival motorcycle clubs at Sydney Kingsford Smith Airport on 22 March 2009. During the hostilities Anthony Zervas, the brother of a member of the Hell's Angels Outlaw Motorcycle Group (Hell's Angels), was killed. This summary of the facts is taken from his Honour's remarks on sentence.

7 I have received a set of agreed facts as to what occurred at the airport on 22 March 2009 and the offender's role in it. What I am about to say about the offence is largely drawn from the agreed facts but it is supplemented by some references to the evidence in the trial and some factual findings I have made based upon it. These are confined to matters that, whilst not adverse to the offender, provide additional clarity and context.

8 It is included in the agreed facts, and it was common ground at the trial, that there was ongoing hostility between the Comancheros and the Hell's Angels and the offender was aware of this.

9 The Comancheros were headed by a national president, Mahmoud Hawi, who had absolute power. It was a club which had a hierarchical structure, underpinned by strict and enforceable rules. These rules governed the behaviour expected from members and reinforced a strong culture of loyalty of members towards one another and to the club. Such rules included that any display of cowardice would not be tolerated.

10 At…

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 Abounader v The Queen

Details

AGLC: Abounader v The Queen [2013] NSWCCA 106
Case: [2013] NSWCCA 106
Decision Date: 16 May 2013

CaseChat Overview and Summary

In the matter of Abounader v The Queen, the defendant, Abounader, appealed against his sentence for his involvement in a riot, which was a fight between two warring motorcycle clubs. The case was heard in the Court of Appeal. Abounader had entered a guilty plea to charges relating to his participation in the riot, but the Crown had rejected his offer of a plea, resulting in a more severe sentence. The appeal focused on the appropriateness of the sentence, particularly whether the sentencing judge had adequately considered the factors that could potentially justify a lesser punishment.

The central legal issues revolved around the sentencing principles of parity and whether the sentencing judge had appropriately considered the circumstances that might mitigate the severity of the sentence. Specifically, the court examined whether the judge had given sufficient weight to the defendant's justifiable sense of grievance, which was a factor that might warrant a lesser penalty. The court also needed to determine whether the discount applied to the sentence, due to the rejected plea offer, was adequate and whether the overall sentence was proportionate to the crime committed.

The Court of Appeal held that the sentencing judge had not sufficiently considered the circumstances that could potentially mitigate the defendant's sentence. The judge had not adequately weighed the factor of a justifiable sense of grievance, which could have led to a lesser penalty. The court found that while the discount for the rejected plea was appropriate, it did not fully account for the mitigating factors present in this case. Consequently, the court determined that the sentence was excessive and ordered a re-sentencing hearing to ensure that all relevant factors were properly considered. The appeal was allowed, and the matter was remitted for re-sentencing.

Orders