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

1. 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

1. 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 the time of the offence the offender held the office of "road captain" within the Comancheros. It is stated in the agreed facts that his duties in this position "included organising road trips". The use of the word "included" implies there were other duties as well but the nature of them is not disclosed.

11 On Sunday, 22 March 2009 Hawi, along with Christian Menzies, Ishmail Eken, Pomare Pirini and Maher Aouli, all members of the Comancheros, were flying from Melbourne to Sydney on Qantas flight 430. They departed Melbourne at about midday and were due to arrive in Sydney at about 1.30pm.

12 Derek Wainohu, the president of the Hell's Angels, happened to be on the same flight and was seen by the Comanchero members. Passengers observed them to exhibit animosity towards him. Hawi glared and gestured as he walked up and down the plane past Wainohu a number of times. He directed Aouli to contact other members in Sydney, including the offender, in order to have them attend the airport. Wainohu sent text messages to members of his gang for the same purpose.

13 Telephone records show that after he was telephoned by Aouli, the offender contacted eight other Comanchero members. He then drove his car to the airport with Tiago Costa and Francesco La Rosa as passengers. Another Comanchero member, SP, drove Usama Potrus' mother's car with Potrus, AL and Zoran Kisacanin as passengers. (Publication of the names of SP and AL has been suppressed.) The two cars with their seven occupants first proceeded to a meeting with senior club members (the Commander and the Sergeant at Arms) at Brighton-le-Sands before going to the airport.

14 The seven Comancheros who came to the airport did so under the obvious impression that their attendance was required as a matter of urgency. On arrival the cars were parked illegally directly outside the lower, baggage claim, level. All the occupants alighted and entered the building. They immediately went via escalators at the eastern end of the terminal to the upper, departure hall, level where they walked in front of the check-in counters towards the security checkpoint at the western end.

15 With the exception of the offender, the Comancheros passed through the security screening area at the western end of the terminal and proceeded to Gate 5 where QF430 was due. The offender was seen on security camera footage signalling to the other Comanchero members and tapping his pocket. Potrus returned to wait with the offender outside the security screening area in the departure hall. The offender did not go through the screening area as he had a knife with him and believed that it would be detected by the walk-through metal detectors.

16 Seven Hell's Angels members or associates also came to the airport: Peter and Anthony Zervas, Musa Ovalle, David Padovan, Tom Baker, Peter Martin and Elias Khoury. Baker and Padovan went through to Gate 5 via the security screening point in the centre of the terminal. The remaining five men waited in the departure hall.

The Affray at Gate 5

17 An affray occurred in the immediate vicinity of Gate 5. Neither Potrus nor the offender were present and it is unnecessary to go into great detail. Suffice to say, there was a verbal confrontation between Hawi and Wainohu after they had disembarked. Wainohu and Baker were punched to the ground and Comanchero members were punching and kicking Padovan. At the end of the affray, Hawi yelled threats to the retreating Hell's Angels. None of the participants received serious injuries but members of the public were put in fear.

18 The Comanchero members (those who had disembarked from the flight and those who had driven to the airport and gone through to Gate 5) walked as a group out of the sterile area and emerged into western end of the departure hall through a set of 'one-way' bi-fold doors.

19 On their way out of the sterile area Aouli is visible on security camera footage making a mobile telephone call. Telephone records established that it was a call made to Potrus. Aouli informed him of the affray that had just occurred at Gate 5. It is agreed that news of the affray was passed on by Potrus to the offender.

The confrontation in the departure hall

20 The offender and Potrus joined the other Comanchero members as they emerged into the departure hall. The offender and Potrus had been waiting in an area near the security screening point at the top of the escalators that led downstairs to the baggage collection area and exit. But instead of going downstairs to collect their checked baggage, the group of now 12 Comancheros moved quickly towards the five Hell's Angels who were milling about in the centre aisle of the departure hall between the business class and economy class check-in counters.

21 There was an issue in the trial as to why the Comancheros walked in this direction. Were they aware of the presence of the Hell's Angels? Were they intent on confronting them? It was contended on behalf of the Comancheros that they were simply heading towards the escalators at the eastern end of the terminal that had been used earlier by the seven who had come to the airport in order to go downstairs to the cars and leave the airport. I indicated when sentencing Eken and Potrus that this claim had no credibility. If they were in a hurry to get out of the terminal as they claimed, why would they walk towards some escalators that were at the opposite end of the terminal, about 140 metres away, when there were escalators almost immediately adjacent to the bi-fold doors? I observed that it seemed highly likely that the Comancheros walked deliberately towards the waiting Hell's Angels; probably because Abounader and Potrus had become aware of their presence while they were waiting for the others to return from Gate 5:Rv Eken; R v Potrus [2012] NSWSC 2 at [21]-[22]. However, I also indicated that it was unnecessary to decide this issue and that what really was of significance was what occurred when the two groups came together.

22 If the Comancheros were not previously aware of the presence of the Hell's Angels, they obviously became aware of them as they walked increasingly quickly in their direction. The distance from where the other Comancheros met up with the offender and Potrus outside the bi-fold doors to check-in counters 13 and 14 where they confronted the Hell's Angels was approximately 73 metres.

23 It is an agreed fact that it was the intention of the Comancheros as they approached the Hell's Angels to confront them. Kisacanin peeled off and ran between the check-in counters, and then continued running east in an apparent attempt to approach the Hell's Angels from a different angle; something of a flanking manoeuvre.

24 The two groups came together behind the check-in counters. There was a short verbal argument between Hawi and Peter Zervas before the riot commenced. The deceased Anthony Zervas made a pre-emptive strike at Hawi with a pair of scissors, striking him near the ear. It was later determined that the deceased had a high level of illicit drugs in his system. Eyewitnesses describe the riot as then breaking out with both sides fighting each other and punches flying everywhere.

The riot moves in front of the check-in counters

25 As the riot continued, the participants fought their way through the counters to the area at the front of the terminal where passengers were queuing with their luggage.

26 The fighting that took place, although short-lived, was shockingly vicious. Eyewitnesses described the riot as being a "massive brawl", and an "a// in brawl" between two sides, with more men on one side than the other. One witness spoke of "an explosion of fighting".

27 Another witness said, "They all started fighting as well and it was like a frenzy, they just went for it, the whole lot of them, and, you know, punching, throwing -just punching, kicking and then the bollards became involved ...It was just too horrendous". A witness lining up at the check-in counters fell to the ground as her companion tried to pull her out of the way of the violence. She described the fighting as "chaotic and quite wild and uncontrolled", and that the men were "raging, really angry. There was a lot of momentum, there was no - it would have been quite a hard fight to stop".

28 The fighting generally involved wrestling, punching and kicking. However, some of the participants picked up bollards to use as weapons. A witness said that he "saw the metal bollards being thrown through the air and smashed on to people". A Qantas staff member said that the fighting men "fell into the crowd; people went flying, screaming; and the bollards were flying".

29 The deceased was pursued to the glass wall at the front of the terminal where he went to the ground. He was bludgeoned with a bollard causing severe head injuries and also suffered three stab wounds to his chest and abdomen. It was an agreed fact in these proceedings that the stab wounds were likely inflicted by a pair of scissors. The Crown has accepted that the offender was at no stage involved in the attack on the deceased.

30 The riot lasted only about a minute. However it was extremely frightening and distressing for those present in the terminal. Many of the witnesses felt threatened and terrified. A mother travelling with two young children described being terrified. She said,"/ was absolutely frozen with fear, and I just held my child close for protection. I pulled the pram towards me and I prayed that one of those bollards didn't fly through the air and land on my child... my child was crying". This witness was observed to be "really distressed, yelling, crying" and was given oxygen by paramedics.

31 Her husband described her as being "really distressed, yelling, crying". Another witness said that the mother was "clearly... very distressed and looked quite shocked and she burst into tears". This witness added, "/ suppose I became distressed myself". An elderly woman said that she had to turn away as she "got too distressed because [she had] never experienced anything like this". An elderly couple seated close to where the fatal assault took place was observed to have been in distress. One of the first police officers on the scene said that a number of the members ofthe public who were present "appeared distressed and upset".

1. His Honour described the applicant's role as follows:

The role of the offender

32 The offender was part of the group of Comancheros that was moving quickly towards the Hell's Angels in the departure hall. At this time he had formed a clear intention to confront the Hell's Angels.

33 The offender participated in the fighting as it moved through the check-in counters. He was described by a witness as trying to put another man in a head lock. She said, "He was just trying to put this smaller gentleman in a head lock and trying to grab him".

34 At one stage the offender attempted to take out the knife he had in his pocket but he accidentally cut his own hand, causing it to bleed extensively. He was not seen to brandish or threaten anyone with the knife.

35 The offender fled the terminal with SP, Costa and Potrus by running along the road to the carpark and taking the lift to the ground level where he and SP had parked the cars. A trail of his blood was found in the carpark and the lift.

36 A knife that was similar to the description of the offender's was later found in a drain outside the terminal.

1. His Honour assessed the seriousness of the applicant's offence in these words:

Objective seriousness

37 I do not believe that the riot was planned or premeditated. Rather it was the result of three significant factors culminating on the day: the Comancheros' culture that prized loyalty and eschewed cowardice; the ongoing war with the Hell's Angels; and the chance encounter between Hawi and Wainohu on flight QF430 from Melbourne.

38 The first response of both sides to this chance meeting was to summon reinforcements to Sydney airport. This may not have been done with the specific intention that there would be a violent confrontation, but the number of Comancheros that were summoned and the urgency with which they arrived indicated that they were alive to that possibility.

39 That being said, once in the terminal, I am satisfied that it was the Comancheros who were the principal aggressors between the two groups. They were prepared to engage in violence at Gate 5 with their obvious advantage in numbers of 10 to 3 and they were prepared to continue with violence at an escalated level in the departure hall, where they initially outnumbered the Hell's Angels 12 to 5 (Wainohu, Baker and Padovan arrived in the departure hall after the riot had started).

40 Anthony Zervas' attack on Hawi was certainly foolish; Hawi was 178 cm tall with a heavy muscular build while Mr Zervas was 161 cm tall and weighed only 58 kg. But while that attack probably fuelled the aggression of at least some of the Comancheros, I am not persuaded that the riot was initiated by this attack. The fact is that violence was inevitable as the 12 Comancheros hurried towards the 5 Hell's Angels with the intention of confronting them. Anthony Zervas simply tried to make a pre-emptive strike.

41 A matter that is particularly relevant to the assessment of the objective seriousness of the riot is the location in which it occurred. Despite being surrounded by members of public, and airline, airport and security staff, the participants were prepared to engage in vicious fighting across a wide area of the departure hall. The level of violence increased as bollards were picked up and used as weapons.

42 An airport terminal is a place where people are entitled to expect safety and security. But many witnesses were left distressed and fearful by the riot. There were elderly people and small children present. I have no doubt that the memory of it will live long in their minds.

43 In assessing the seriousness of the offence, I also have had regard to the offender's individual culpability for the violence of that day. It is an agreed fact that the offender did not take part in the attack on the deceased and I have excluded from my consideration any responsibility of the offender for the death of Mr Zervas.

44 Nonetheless, I am satisfied that the offender did play an organisational role in the violence that occurred that day. After he received the call for reinforcements from Aouli on the flight, he marshalled the other Commancheros before they all headed to the airport. He also stopped to consult other Comanchero office bearers on the way.

45 Further, the offender was armed with a knife. His decision not to pass through the security screening with the rest of the Comancheros and remain in the departure hall indicates that he was well aware that he was carrying a weapon and unwilling to part with it. Once the riot started he tried to pull out the knife. It was an agreed fact that he cut his hand on it and there were no witnesses who saw him brandish the knife or threaten anyone with it. But it remains that he did go for his knife and I can only infer that this was because he intended to use it during the riot.

46 A witness identified the offender fighting during the riot. He was described as trying to put another man in a headlock. His use of violence at least included physical fighting in this respect and it is an agreed fact that the offender was involved in the riot as it came through the check-in counters.

47 I am satisfied that the riot, and the offender's role in it, means that his offence is one of considerable objective seriousness.

The Applicant's Plea of Guilty

1. The applicant's plea of guilty came about in the following way. He was arrested on 3 July 2009 and charged with riot. He was refused bail. He was charged with murder on 12 August 2009. He pleaded not guilty to both charges. He was committed for trial.

1. On 10 May 2011 Counsel for the applicant offered on his behalf that he would plead guilty to manslaughter if the Crown would accept the plea in discharge of the murder indictment. The offer was refused by the Crown Prosecutor. It seems from a file note written on the same day by the solicitor instructing the Crown Prosecutor that the solicitor for the applicant had already written to the Crown offering the plea of guilty and that the Crown had not accepted it. On making his offer, Counsel for the applicant asked whether it were necessary to put the offer in writing and the Crown Prosecutor said that there was no need. Both solicitors made file notes of the conversation.

1. The trial commenced on 24 May 2011 and on 2 November 2011 the jury found the applicant not guilty of murder. They were unable to agree on the alternative charge of manslaughter. No verdict was taken on an alternative charge of riot.

1. On 2 December 2011 an indictment charging manslaughter was presented and the applicant pleaded not guilty. His trial was fixed for 3 September 2012. He successfully applied for bail pending trial and entered it on 4 May 2012. On 24 August 2012 a further indictment was presented charging riot and the applicant pleaded guilty to that charge. The Crown abandoned the manslaughter charge.

Other offenders

1. Fourteen persons other than the Applicant were charged with offences arising out of the hostilities. Those indicted for their conduct at Gate 5 were charged with affray. Those indicted for their conduct in the Departure Hall were charged variously with murder, manslaughter, riot and affray. Of those ultimately sentenced, Christian Menzies, Ishmail Eken, Usama Potrus and Zoran Kisacanin are important for this appeal. They were tried jointly with the applicant.

1. On 2 November 2011 Menzies was acquitted of murder and the jury were unable to agree on manslaughter. Menzies was found guilty of affray (Gate 5). On 2 December 2011 he pleaded guilty also of manslaughter (Departure Hall). He was sentenced for affray to a fixed term of three years and for manslaughter to a non-parole period of three years and eight months and a balance of term of three years and six months. The sentences were partly accumulated to produce an effective non-parole period of four years and two months and a balance of term of three years and six months.

1. On 2 November 2011, Ishmail Eken and Usama Potrus were both acquitted of murder and manslaughter and found guilty of riot (Departure Hall). Each was sentenced to a non-parole period of three years and a balance of term of two years.

1. On 2 November 2011 Zoran Kisacanin was acquitted of murder and manslaughter and found guilty of affray (Gate 5) and riot (Departure Hall). He was given a fixed term of two years and two months for affray and a non-parole period of two years and eight months with a balance of term of two years and one month for riot. The sentences were accumulated to produce an effective non-parole period of three years and two months and balance of term of two years and one month.

1. The maximum penalty for manslaughter is imprisonment for 25 years, for riot imprisonment for 15 years and for affray imprisonment for 10 years.

The Grounds of Appeal

1. The first ground of appeal asserts that the applicant has a justifiable sense of grievance in light of the sentences imposed on his co-offenders, Eken, Potrus and Kisacanin.

Eken and Potrus

1. Potrus was not present at the affray at Gate 5. Eken was but was found not guilty of the affray there. They were dealt with for the events in the Departure Hall. In sentencing them his Honour said this about the events leading up to the confrontation in the Departure Hall-

14 The affray, for which Mr Eken was acquitted, occurred in the immediate vicinity of Gate 5 after the arriving passengers disembarked. It is unnecessary to go into the detail of what occurred aside from saying that there was a fight involving three Hell's Angels, Wainohu, Baker and Padovan, and a number of the Comancheros. The fight commenced very shortly after Hawi and Wainohu came face to face after disembarking from the plane. The jury were satisfied of the involvement in the use, or threatened use, of violence by Hawi, Menzies and Kisacanin, given the verdicts of guilty of affray they returned in respect of them. SP and AL, Pirini, Aouli, La Rosa and Costa had earlier pleaded guilty to affray in respect of this incident. The Crown did not contend that Messrs Wainohu and Baker were aggressors. It did in respect of Mr Padovan, but he was acquitted. The submission by his counsel in his closing address to the jury that "he was flogged" by the Comancheros was, in my view, apt.

15 It was Mr Eken's case that he played something of a peacemaker role during the affray at Gate 5. AL said that he heard someone say words to the effect, "Not here, let's go outside". There was evidence that SP had told a police officer in July 2009 that Mr Eken had settled things down and had said, "Not in the airport". Some of the eyewitnesses heard someone say "Let's take it outside" or the like. The Crown, on the other hand, submitted that if the jury accepted any of this evidence, they should consider that Mr Eken was not trying to discourage fighting; he was simply counselling the participants to do it elsewhere.

16 There was evidence that at the conclusion of the events at Gate 5, Hawi pointed and uttered threats towards one or more of the Hell's Angels. One witness said that he heard, "You're dead, you are fucking dead". Another heard, "You're a dead man, you're fucking dead, you've got bullet holes in you". If the witnesses were able to hear these threats, Mr Eken must have as well.

17 Whilst the jury was not satisfied beyond reasonable doubt of Mr Eken's guilt in respect of the affray, and so he is to be regarded as innocent of that offence, the fact that he undoubtedly witnessed the violence at Gate 5 cannot be ignored. It must have been the freshest thing in his memory as he emerged, with his fellow gang members, into the departure hall. A feature of what he witnessed was the preparedness of at least some of his companions to use or threaten violence in a public place in front of many members of the public, including children. The accounts given by many of those who gave evidence about the affray made it abundantly clear that many were horrified and frightened.

18 From the foregoing, I am satisfied of a number of matters that are worth recapping in order to put what next occurred in context. The Comancheros and Hell's Angels motorcycle gangs were, in effect, at war with each other. Mr Eken was a member of the Comancheros. He was subject to its strict rules requiring loyalty and prohibiting cowardice. There was a prospect, of which he was aware soon after boarding the flight in Melbourne, of a confrontation with one or more Hell's Angels upon arrival in Sydney. Given the history of hostility between the two gangs it was a reasonable possibility that such a confrontation would involve violence. On Hawi's command, he assisted in summoning reinforcements. A violent fight broke out between the Comancheros and the Hell's Angels soon after the flight landed. Mr Eken was a witness to this but did not participate and may have tried to encourage the participants not to fight in that particular location. After it had ended, it was apparent to him, and his companions, that their gang president was extremely displeased and had indicated that he wanted vengeance at the next opportunity, whenever that might be.

19 Mr Potrus was a full Comanchero member as well. He had been summoned to attend the airport and he did so as a matter of urgency. He was made aware that fellow Comanchero members, including the national president, were arriving on a flight from Melbourne and that there was a prospect of Hell's Angels being present. Again, given the history of hostility, it must have been obvious that if any confrontation occurred, there could be violence. Mr Potrus did not witness what occurred at Gate 5 but he must have been made aware of it, at least in a general sense, very soon after.

1. In imposing sentence his Honour summarised Eken's conduct thus-

32 SP gave evidence of seeing Mr Eken involved in fighting in front of the check-in counters with Peter Zervas and another one of the Hell's Angels (T2623). It would seem that this fighting was confined to punching and wrestling; there is no suggestion that he was involved in using any implement as a weapon. SP said that Mr Eken was on the ground at some stage, having either fallen or been knocked down. This could have been in the area where his small brown bag was later found, between two of the check-in counters. In his closing address to the jury, Mr Young did not dispute that Mr Eken was involved in some fighting. His case was put in terms of him having only acted in self-defence - "He was fighting someone off so he could get away" (T4558) - a proposition rejected by the jury beyond reasonable doubt.

and Potrus's thus-

35 Mr Potrus lost his shoes during the riot: one was found between the check-in counters and he was seen on security camera footage to be carrying the other one. The witness with the two children described seeing three men passing in front of her, coming from the direction of where the deceased was lying on the ground. She said one of them had no shoes on. No-one else lost their shoes and so it is reasonable to infer that this was a description of Mr Potrus coming from somewhere near to where the fatal assault occurred. I note that the Crown did not suggest that Mr Potrus was directly involved in that assault.

36 Potrus, Abounader, Costa and SP ran out of the terminal and, via a convoluted route, returned to the cars and made good their escape. Mr Potrus could be seen in security camera footage in the carpark lift carrying one of his shoes and wearing a singlet that was torn. He had clearly been involved in the fighting in some fashion. There was evidence from SP that he saw Mr Potrus fighting (T2622). In cross-examination he agreed that Mr Potrus had been hit and had fallen to the ground in the vicinity of where his shoe was later found. He also said that Mr Potrus had later complained of an injury to his jaw (T2909 - 2911). There was no medical evidence of any injury. The most there was on this topic was some vision of Mr Potrus rubbing his jaw when in the carpark lift. Mr Driels, counsel for Mr Potrus, as did other counsel, strongly challenged SP's honesty and reliability as a witness. It does not seem to me to be safe to act upon it unless independently confirmed.

37 Mr Potrus' case was that he had simply gone to the airport to meet "his friends" and to take them home safely (T4506). If he was involved in any fighting, it was in self-defence. Clearly the jury rejected that case in relation to the riot charge.

Kisacanin

1. In sentencing Kisacanin his Honour described the affray at Gate 5 in terms similar to those extracted above and continued -

16 From the foregoing, I am satisfied of a number of matters that are worth recapping in order to put what next occurred in context. The Comancheros and Hell's Angels motorcycle gangs were, in effect, at war with each other. The offender was a nominee member of the Comancheros. He was subject to its strict rules requiring loyalty and prohibiting cowardice.

17 I am satisfied that when he proceeded to the airport the offender was aware that there was a prospect of a confrontation with one or more Hell's Angels. Given the history of hostility between the two gangs it was a reasonable possibility that such a confrontation would involve violence. That became the reality almost immediately. After the affray had ended, it must have been obvious to the offender, and his companions, that their gang president was extremely displeased and had indicated that he wanted vengeance at the next opportunity, whenever that might be.

1. In dealing with Kisacanin's conduct in the Departure Hall his Honour said this-

30 The offender was one of those who picked up a bollard. There was no evidence as to what he did with it. However, he was clearly seen in security camera footage putting a bollard down in an area away from where the bollards had been placed to direct passengers queueing [sic] to check in.

31 There is no evidence which positively identified the offender as one of those actively involved in the fighting. However, there was evidence from a witness who said that she saw a man come from in front of the check-in counters to join in the fighting that had broken out behind them (T1209). That was consistent with the path the offender took to approach the Hell's Angels from a different angle. There was evidence from another witness who said she saw a man pick up a bollard and swing it before she looked away. She described the clothing of this man in a fashion that could have been regarded by the jury as matching the offender (T974-948). Another witness saw a man "from another fight" casually putting a bollard down (T2326).

32 The evidence of each of these witnesses, considered separately, was incapable of establishing beyond reasonable doubt that the offender was involved in the actual use of violence. However, when considered together, as well as with the descriptions of a large number of witnesses as to how many men were involved in the fighting, I am satisfied that the offender did play a role in it, even though I am not able to make a precise finding as to what he actually did.

Parity

1. Dealing with the need to ensure parity of sentencing his Honour said this in sentencing the applicant-

80 I have borne in mind the sentences imposed upon the various offenders convicted for offences other than riot. It is important to retain some proportionality but they are of limited significance.

81 More significant are the sentences imposed upon others who have been sentenced for the offence of riot: see R v Eken; R v Potrus, supra, and R v Kisacanin [2012] NSWSC 91.

82 The starting point for the sentences imposed upon Eken and Potrus was 6 years 3 months and for Kisacanin it was 6 years. I have carefully reviewed the findings that I made in terms of the objective seriousness of their offences and their own personal circumstances and mitigating features. I have concluded that the seriousness of the offence in the present case is worse because (a) he was one of the organisers in mobilising the Comancheros to go to the airport; (b) he came armed with a knife; and (c) his culpability in terms of involvement in the fighting was greater in that at one point he had an opponent in a headlock and at another he intended to produce his knife. The subjective features, on balance, are not greatly different.

1. It was submitted for the applicant that his Honour unnecessarily concluded that sentences imposed for other offences were of limited significance and that the parity principle should apply even by comparison for sentences imposed for manslaughter. Reference was made to Green v The Queen [2011] HCA 49 per French CJ, Crennan and Kiefel JJ at [30]-

In Lowe v The Queen and in Postiglione v the Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged.

1. Reference was also made to Khan v R [2012] NSWCCA 132 per Rothman J at [53] and Jimmy v R [2010] NSWCCA 60 per Campbell JA at [202].

1. It was pointed out that the undiscounted starting points for the sentences imposed for Eken and Potrus were six years and three months respectively and for Kisacanin six years, while that for the applicant was seven years. It was observed that the subjective cases of Eken, Potrus and Kisacanin were not significantly different from the applicant's. That observation may be accepted though, as we should explain, the applicant's co-offenders mounted more persuasive cases on their offers to plead guilty.

1. The Crown pointed to the obstacles facing an applicant for leave to appeal against sentence where the sentencing judge is fully aware of the sentences imposed on co-offenders and has indicated the reasons for departing from them, particularly where the differences result from facts legitimately found by the sentencing judge. Reference was made to the judgment of Howie J, with whom the other members of this Court agreed in Tatana v R [2006] NSWCCA 398 at [28].

1. Comparing the applicant's sentence with those imposed on Eken, Potrus and Kisacani, counsel for the applicant attacked his Honour's remarks at [82] that the applicant was an organiser, came armed with a knife and had a greater involvement in the fight. It was submitted that the apparent distinctions made by his Honour were not distinctions at all. It was submitted first that the applicant's role in mobilising members of the club was relevant only to premeditation, whereas his Honour had commented at [37] -

I do not believe that the riot was planned or premeditated.

1. It was submitted that the mobilisation of members was not done with the intention of engaging in a confrontation of the sort that later ensued, so the fact that the applicant was the mobiliser did not aggravate his offence.

1. In our opinion his Honour's conclusion about lack of premeditation did not render irrelevant the applicant's position as organiser. As his Honour concluded, the members whom he summoned were alive to the possibility that there would be violent confrontation. To that extent the applicant's mobilising significant numbers of club members bore upon the sentence. No doubt also his presence with them as events unfolded at the airport encouraged them to play a part in the violence.

1. Dealing with the problem of the applicant's knife, his counsel submitted that since his Honour was expressly unable to say whether the applicant deliberately armed himself in anticipation of trouble at the airport or whether he carried the knife because that was his habit, his Honour could not sentence him on the basis that he attended at the airport intending to use the knife. The mere possession of it did not aggravate his criminality.

1. There are three reasons why we would not accept that submission. First, it implied that an offender who habitually carries a knife in case the need to use it arises is less culpable than one who carries the knife only when he foresees that the occasion may arise to use it, a statement with which we do not agree. Secondly, although his Honour could not find exactly when the applicant formed the intention to use the knife, the applicant undoubtedly foresaw the need to use it as events developed. He did not go to Gate 5 because he believed that officials might seize the knife. Thirdly, he drew the knife intending to use it in the fight. A submission that his Honour could not have known whether the knife was drawn for attack or defence was misconceived. When a man willingly draws a knife and runs into a fight there is no significant distinction between offence and defence.

1. It seems to us that his Honour did not err in discriminating between the applicant on the one hand and Eken, Potrus and Kisacanin on the other by reference to their respective conduct. In our opinion the several sentences fell well within the range of his Honour's sentencing discretion.

1. This ground of appeal has not been made good.

1. The second ground of appeal asserts that the applicant has a justifiable sense of grievance by comparing his sentence with that imposed on Menzies. In sentencing Menzies his Honour said this about his conduct at Gate 5-

14 Almost immediately after emerging into the terminal there was a confrontation between Hawi and Wainohu. There was a short verbal argument before Wainohu was punched, causing him to fall to the ground. The witnesses AL and SP, two of the Comanchero members who pleaded guilty and gave evidence for the Crown, both said that they saw the offender punch Wainohu twice at the start of the confrontation. However, AL agreed in cross-examination that he told police that he did not see the offender punch Wainohu; rather he was only told about it.

15 Members of the Comancheros were then observed to chase and assault Padovan. The affray escalated with him being violently punched and kicked. The fighting resulted in Padovan losing his shirt and at one stage he was on the ground being punched and kicked by numerous Comanchero members. There was no evidence that the offender was one of those who chased or assaulted Padovan.

and this about the Departure Hall-

32 Hawi was found by the jury to be guilty of his murder. All of the other Comancheros were acquitted of murder. Some were also acquitted of manslaughter, while the jury could not agree in respect of manslaughter for Abounader and the offender.

33 The Crown alleged at the trial that the offender was directly involved in the fatal assault upon the deceased. This was not accepted beyond reasonable doubt by the jury. The agreed basis for the offender's subsequent plea to manslaughter is that he was not directly involved in that assault but was complicit in the killing by virtue of being a participant in a joint criminal enterprise.

34 The offender gave evidence in the trial. He said that he was trying to get away from an attack by the Hell's Angels behind the check-in counters. He proceeded through the counters to the front where "there was just a big scuffle". There were people fighting. He said, " I ran in, started throwing punches. I seen Pirini, Peter Zervas, Anthony. We all sort of fell over. I was copping punches, throwing punches ". He noticed Eken on the ground with a Hell's Angels person on top of him, " just laying into him ". He grabbed that person around his neck and punched him in the head to try and get him off Eken. He succeeded in doing that but the man turned around; there was a skirmish which resulted in them falling to the ground where they had what he said was "a little scuffle". They both got up, shaped up to each other for a couple of seconds and then the offender "took off" (T3976 - 3977).

35 The offender's evidence must, of course, be understood in the context of him claiming that he was only acting in justifiable self-defence, a claim now disavowed by his plea of guilty.

1. Menzies was sentenced for manslaughter, which carries a longer maximum sentence than that for riot. Even so, maximum sentences for both offences are long, and there is no principle that requires a sentence for manslaughter always to exceed a sentence imposed for riot. There is likely to be a substantial overlap in assessed criminality and in the consequent discretion resting in the sentencing judge. The elements of the offences are different. This Court has commented many times on the extent of the range of discretion in sentencing for manslaughter.

1. It is apparent from his Honour's remarks that Menzies did not perform the act that caused the death of the deceased and that his liability was accessorial. His Honour's description shows that Menzies willingly ran into a fight and exchanged blows with others.

1. Menzies was sentenced also for his part in the affray at Gate 5 but that was a less violent exchange between fewer men and there was such a strong connection between events there and events in the departure hall that the affray was bound to be seen only as introductory or preliminary to the riot. His Honour was concerned to impose a total effective sentence to reflect the totality of Menzies' criminality.

1. As to the respective acts of the applicant and Menzies in the departure hall, it seems to us that his Honour was entitled to regard as far more serious the deliberate acts of the applicant in holding on to the knife and drawing it with the intention of using it. That on top of the applicant's organisation and encouragement of others, including Menzies. Leaving aside his criminality associated with the knife, the part played by the applicant was at least as serious as Menzies'.

1. The undiscounted starting point of Menzies' sentence was one year and six months longer than the applicant's. In our opinion that was enough to reflect the difference between the charges in the light of the differences of their respective acts.

1. An attack was made on appeal on the custodial and parole components of the respective sentences. It was pointed out that whereas the applicant's non-parole period was 66 percent of his head sentence, Menzies' was 54 percent of his total effective sentence. It was submitted that Menzies' and the applicant's subjective cases were not significantly different, so his Honour erred in producing disproportionate sentences.

1. We do not accept that submission. There were important differences in the subjective cases. In sentencing Menzies his Honour expressed some important findings. Menzies was in a stable relationship. His partner continued to support him. He had strong family support. He had been in almost continuous employment before his arrest, having done a TAFE course. He had given up alcohol and illicit drugs. He had left the club and had had club tattoos removed. He had behaved himself on remand and had been given responsibilities in custody. He had given himself up to police. He had pleaded guilty about one month after the jury verdict. He had written about his sympathy for the family of Zervas and had acknowledged full responsibility for his actions. His Honour considered his remorse genuine and his risk of re-offending low. He assessed the prospects of rehabilitation as good.

1. The applicant, on the other hand, had not severed his relations with his club. He had avoided contact with colleagues but only because that was a condition of his bail. His Honour found that the prospect of not reoffending and of rehabilitation appeared to be reasonable. However, his Honour was not prepared to find as genuine the applicant's repeated assertions to be remorseful. His Honour considered that the statements might as easily be only self-serving.

1. The subjective cases seem otherwise to have been roughly similar.

1. In our opinion Menzies' markedly better subjective case was sufficient to justify his Honour's difference of approach. This ground of appeal has not been made good.

1. The only other ground of appeal pressed was the fourth, which asserted that his Honour gave the applicant insufficient discount for his plea of guilty and/or his earlier offer to plead guilty of manslaughter.

1. The events leading up to the applicant's plea of guilty are set out at [5] - [8] above. His Honour allowed the applicant a 15 percent discount from his sentence for his plea. He allowed each of Eken, Potrus and Kisacanin 20 percent for their pleas. The submission was that his Honour's discrimination was unjustified and that the applicant ought to receive a further 5 percent discount. The other grounds failing, that would lead to a reduction in his head sentence of 3.6 months and in his non-parole period of 2.4 months.

1. On the sentence hearing the Crown tendered an agreed statement of facts. It contained this paragraph-

41 Counsel for the offender sought advice from the Crown Prosecutors before the jury were empanelled as to whether there was any point in making an offer to plead to manslaughter and was advised that it was likely that the Director would not accept such an offer. No such offer was made formally in writing.

1. Also on sentence, apparently without notice and without reference to paragraph 41 of the agreed statement of facts, a file note, Exhibit 3, was tendered. It was in handwriting, apparently of the solicitor instructing the Crown Prosecutor. The body of the note is as follows:

Re: offer to plea to manslaughter

[Name] formally made offer to Crown for FA to plea to manslaughter in full satisfaction of the indictment

→Formally refused by [Crown Prosecutor]

We were told by [Crown Prosecutor], [name] had written to the Crown (their sol) → Mans offer to plea

→not accepted

[Name], asked whether it was necessary to put offer in writing. [Crown Prosecutor] said no need, they have made a file note (told [name])

[Name] said my instructing solicitor has made a file note.

She said the file note will suffice.

1. Having heard the evidence and the submissions of Counsel, his Honour retired to consider the matter. He returned to the bench after a short time to impose sentence. The Remarks on Sentence included these paragraphs-

74 It is part of the agreed facts that "counsel for the offender sought advice from the Crown Prosecutor before the jury were empanelled [at the first trial] as to whether there was any point in making an offer to plead to manslaughter and was advised that it was likely that the Director would not accept such an offer. No such offer was made formally in writing". Whether the offender would have been prepared to plead guilty to anything will remain unknown; the question was not further explored after the Crown's response.

75 A file note of the offender's solicitor was tendered this morning confirming that on 10 May 2011, counsel "formally made [an] offer to the Crown for [the offender] to plead to manslaughter in full satisfaction of the indictment" but that the offer was refused. Whilst I accept that such an offer was made, it was made much later than similar offers were made by other offenders for whom I allowed a reduction of sentence of 20 per cent.

1. It was submitted on appeal that there was a tension between paragraph 74, based on paragraph 41 of the agreed statement of facts, and paragraph 75. No doubt that resulted from the parties' late production of the file note and what turned out to be the misleading tenor of paragraph 41 of the agreed statement of facts. However, we do not think that his Honour was misled. Paragraph [75] makes clear that his Honour accepted that there was a frank offer and a frank refusal. Moreover, the discount of 15 percent allowed was squarely in the range for a plea offered two weeks before the trial was due to commence.

1. In sentencing Eken, Potrus and Kisacanin his Honour explained why he was allowing each a discount of 20 percent. Eken's solicitor wrote to the Crown on 1 November 2010 offering a plea of guilty of manslaughter. The offer was rejected. The solicitor wrote again on 16 May 2011 and again the offer was rejected. R v Eken; R v Potrus [2012] NSWSC 2 at [56]

1. The solicitor for Potrus wrote to the Crown in November 2010 conveying an offer to plead guilty of riot. The letter contained in addition an implicit invitation to the Crown to indicate whether it was prepared to accept a plea of guilty of manslaughter. The Crown responded that it would accept only a plea of guilty of murder R v Eken; R v Potrus [2012] NSWSC 2 at [72].

1. On 18 November 2010, the solicitor for Kisacanin wrote to the Director of Public Prosecutions conveying an offer to plead guilty to riot and affray in full discharge of the indictment for murder. The letter included a request for an indication as to what charge the Crown would accept a plea of guilty to in full satisfaction of the indictment. His Honour, in sentencing, regarded that as an invitation to offer manslaughter. The Director replied that only a plea to murder and affray would be acceptable. R v Kisacanin [2012] NSWSC 91 at [54].

1. In our opinion his Honour was entitled to regard as significant the six months that elapsed between the co-offenders' approaches and the applicant's, made only two weeks before the commencement of the trial. This was a very large case with many witnesses. It lasted for six months. The original estimate was longer than that. The Prosecuting authorities must have expended a significant amount of time and money in preparing the case for trial before the applicant made his offer. It seems to this Court that his Honour's discrimination between the applicant and his co-offenders fell within the range of his Honour's sentencing discretion.

1. This ground of appeal has not been made good.

1. The orders of the Court will be -

(1)   Grant leave to appeal against the sentence;

(2)   Dismiss the appeal.

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Decision last updated: 24 May 2013