R v Abounader

[2012] NSWSC 1312

Supreme Court

New South Wales

Medium Neutral Citation:	R v Abounader [2012] NSWSC 1312
Hearing dates:	24 August; 26 October 2012
Decision date:	26 October 2012
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Sentenced to imprisonment for 6 years with a non-parole period of 4 years
Catchwords:	CRIMINAL LAW - sentence - riot - violent fight between rival bikie gang members at airport - serious example of offence - negotiated plea after acquittal for murder and no verdict on manslaughter - parity with co-offenders
Legislation Cited:	Crimes Act 1900
Cases Cited:	R v Eken; R v Potrus [2012] NSWSC 2 R v Kisacanin [2012] NSWSC 91
Category:	Sentence
Parties:	Regina Farres Abounader
Representation:	Counsel: Mr M Hobart SC (Crown) Mr J Trevallion (Offender) Solicitors: Solicitor for Public Prosecutions Archbold Legal Solutions
File Number(s):	2009/64354
Publication restriction:	Non-publication of anything that would identify witnesses known as SP and AL

Judgment

1. HIS HONOUR: The offender, Farres Abounader, has pleaded guilty to riot. This is an offence against s 93B of the Crimes Act 1900 for which there is a maximum penalty of 15 years imprisonment.

1. On 22 March 2009 he was involved a violent brawl between members of rival motorcycle gangs, the Comancheros and the Hells Angels, in the departure hall of Terminal 3 at Sydney Kingsford-Smith Airport. The clash left one man, Anthony Zervas, dead and 14 others have since been sentenced for various offences arising out of the events. Some of the participants were not actually members of either gang but were either nominee members or associates of members. However, for convenience, I will refer to people as being a member of one or the other.

1. The offender was arrested on 3 July 2009 and charged with riot. He was refused bail, and subsequently charged with murder on 12 August 2009. He pleaded not guilty to both offences and was committed to stand trial.

1. The trial commenced with empanelment of the jury on 24 May 2011. There were seven accused. The jury retired on 29 September 2011 and returned its verdicts on 2 November 2011. The offender was acquitted of murder and the jury were unable to agree on a verdict on the alternative charge of manslaughter. No verdict was taken on the further alternative charge of riot.

1. On 2 December 2011 the offender appeared before the criminal list judge when a indictment alleging simply manslaughter was presented. He was arraigned and entered a plea of not guilty. The matter was listed for trial on 3 September 2012. On 8 March 2012 he applied for bail which was granted, subject to certain conditions. He entered that bail on 4 May 2012 and was then released.

1. On 24 August 2012 the offender was arraigned upon an indictment that now alleged simply riot and he entered a plea of guilty; the Crown had resolved to take no further proceedings in respect of the charge of manslaughter.

Facts

1. 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.

1. 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 Hells Angels and the offender was aware of this.

1. 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.

1. 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.

1. 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.

1. Derek Wainohu, the president of the Hells 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.

1. 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.

1. 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.

1. 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.

1. Seven Hells 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

1. 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 Hells Angels. None of the participants received serious injuries but members of the public were put in fear.

1. 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.

1. 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

1. 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 Hells Angels who were milling about in the centre aisle of the departure hall between the business class and economy class check-in counters.

1. There was an issue in the trial as to why the Comancheros walked in this direction. Were they aware of the presence of the Hells 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 Hells Angels; probably because Abounader and Potrus had become aware of their presence while they were waiting for the others to return from Gate 5: R v 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.

1. If the Comancheros were not previously aware of the presence of the Hells 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 Hells Angels was approximately 73 metres.

1. It is an agreed fact that it was the intention of the Comancheros as they approached the Hells 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 Hells Angels from a different angle; something of a flanking manoeuvre.

1. 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

1. 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.

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

1. 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".

1. 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".

1. 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.

1. 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, "I 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.

1. 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, "I 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 of the public who were present "appeared distressed and upset".

The role of the offender

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

1. 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 headlock. She said, "He was just trying to put this smaller gentleman in a headlock and trying to grab him".

1. 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.

1. 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.

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

Objective seriousness

1. 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 Hells Angels; and the chance encounter between Hawi and Wainohu on flight QF430 from Melbourne.

1. 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.

1. 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 Hells Angels 12 to 5 (Wainohu, Baker and Padovan arrived in the departure hall after the riot had started).

1. 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 Hells Angels with the intention of confronting them. Anthony Zervas simply tried to make a pre-emptive strike.

1. 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.

1. 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 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.

1. 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.

1. 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 stoppped to consult other Comanchero office bearers on the way.

1. 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.

1. 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.

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

Subjective features

1. The offender was born in Lebanon in 1981. He was aged 27 at the time of the offence and is now 31.

1. He has a criminal history but it is confined to a court appearance in 2002 when he was fined for two traffic offences had a charge of possessing a prohibited weapon without a permit dismissed without conviction. As such the record is of no present significance.

1. Evidence as to the offender's personal circumstances comprises a Pre-Sentence Report, a report by Mr Terry Smith, psychologist, and various testimonials. The offender did not give evidence himself.

1. His family came to Australia in 1990 in order to escape the civil war in his home country. His upbringing was unremarkable. The Probation and Parole Officer reported that he enjoys close relationships with family members and has their support. They appear to have been distressed over his involvement in the incident at the airport.

1. The offender was married in his early twenties but the relationship was disharmonious and they separated prior to him going into custody. He is now in a relationship formed in the past few months. There appear to be positive signs for the future of this union. His partner told the Probation and Parole Officer that she is a positive influence on his life and does not tolerate anti-social behaviour or associations.

1. The offender was educated to School Certificate level. A subsequent enrolment in an Information Technology course at a TAFE college was aborted after a short period. He was subsequently employed in the security industry and in concreting work. He has suffered back injuries as a result of the latter. At the moment he is in receipt of government welfare payments.

1. The Pre-Sentence Report indicates that he joined the Comancheros in 2007. He remains a member, but has had no contact with fellow members because of the need to comply with bail conditions prohibiting such contact.

1. In relation to the offence, he told the Probation and Parole Officer that he was "at the airport to pick up an associate and denied any malicious intent". It is said that "he described himself as 'very remorseful' and demonstrated insight into the effect of the offence on the victim, the victim's family and the witnesses and bystanders". He also described his time on remand as "a wake up to himself and his actions".

1. In her summary, the officer reports that the offender's parents maintain his innocence. I assume from this that he has not told them that he is in fact guilty of playing a role in the riot in the manner described in the statement of facts to which he has agreed.

1. Four testimonials were tendered. A friend described him as being "of high character and a well-mannered individual". A general practitioner who knows the family well described him as hard working, well-connected with his family, not violent, easy going and usually friendly.

1. His mother says she is upset and heartbroken that her son became involved in the wrong crowd. He has told her that he was "sorry it happened and that it was a silly mistake in his life". He has told her many times that he "felt sorry for the family particularly Anthony Zervas' mother, who has lost her son". She feels that after his time on remand he has changed "dramatically". She confirms that the family remains supportive of him.

1. His present partner considers him to be "a very good hearted and honest person who shows remorse for what has happened". He has told her that "he feels very sorry that it happened and that a mother should never have to go through losing a son". She considers that he has undergone a "big change in personality since his release from prison". Her observations confirm the support he has from his family. The couple plan to become engaged and start a family and "put this all behind us".

1. The psychologist, Mr Smith, had two consultations with the offender in the past few weeks. He had been briefed with a number of documents including the statement of agreed facts.

1. In addition to matters I have already referred to, Mr Smith reported that the offender had no problems in terms of alcohol or drugs. He had enjoyed a love of motor cycles since childhood. He met some Comancheros through his ex-wife. He socialised with club members without any interest of joining until he did join in late 2007.

1. The offender likened the loyalty inherent in being a Comanchero member to that of any member of a sporting team "who will support their peers at all costs". I doubt that this is quite the characteristic of all members of sporting teams. The offender described membership of the Comancheros, in effect, as not requiring a person to be involved in anything they did not wish to be involved in; "no one was compelled to do anything against their will".

1. As to the events of 22 March 2009, he told Mr Smith that he received a phone call "from a peer on the plane who requested he meet them at the airport 'in case of trouble ... just be there to pick us up'. ... [H]e was not informed that the potential difficulties involved another motor cycle group". What sort of "trouble" his peers might have experienced at the airport is not explained. How seven men in two cars were going to pick them up was not explained either.

1. He explained his possession of a knife by telling Mr Smith that he generally carried one, and other tools, "for running repairs to the bike and he did not decide on this day to carry one as a weapon". I find that explanation to be quite ludicrous. But whether he deliberately armed himself with a weapon in anticipation of "trouble" at the airport, or whether he was generally in the habit of carrying it I am unable to determine.

1. Mr Smith uncritically reported that the offender told him that "he was not aware of the first altercation between the two groups". That is contrary to the statement of agreed facts; a copy of which was provided to Mr Smith. The balance of the offender's account to Mr Smith of the riot is of dubious credibility as well; and contrary to the agreed facts. For example, Mr Smith reports that the offender said "he was confronted and overwhelmed by a much larger person and grappled with him". Mr Abounader had indicated by his signature on the statement of agreed facts that he had no dispute with the description of a witness that he tried to grab and place in a headlock a "smaller gentleman".

1. The history obtained by Mr Smith confirms that the offender derives from a loving and supportive family environment. His upbringing was a happy and uneventful one. He had no problems at school. He is described as being reasonably intelligent and with some sporting prowess. He also appears to be somewhat gregarious.

1. Mr Smith asked the offender whether "he would like to make any further comments to the Court". There follows a quotation of what was obviously intended to be a claim of remorse. Without the offender having been prepared to back it up by giving me an opportunity to assess whether he was genuine, I am not prepared to accept it. This is particularly so given that it contains assertions inconsistent with the agreed facts: for example, "I was just told to be there in case there was trouble and then to walk with them". It was an agreed fact that he was aware of the Gate 5 affray and that as the Comancheros approached the Hells Angels in the departure hall he intended to confront them.

1. Despite Mr Smith remarking upon the absence of any drug, alcohol and mental health issues, a positive and supportive family environment, above average intellectual capacity, emotional confidence and adequacy, insight and capacity to converse across a range of social, political, religious and philosophical topics, and no psychological or relationship issues, he found the prognosis of him reoffending "a difficult one upon which to speculate".

1. The report then lists a variety of factors relevant to such prognosis, mostly positive, but then does not express any conclusion. Perhaps that was an oversight because I have the impression from the general tenor of the report that Mr Smith would tend to think that the prospects of re-offending are minimal. However, the fact that he recorded a history without any comment on matters that conflicted with the agreed facts means that such an impression must be considered with circumspection.

Some specific mitigating factors

1. I am not satisfied that the offender is genuinely remorseful. He has made a number of statements to others indicative of remorse, but the evidence does not permit me to conclude in his favour that such expressions are genuine as opposed to self-serving.

1. Aside from the offender being an office holder of an outlaw motorcycle gang, I am prepared to accept that he was of prior good character. His record of previous convictions is trivial.

1. Prospects of rehabilitation and not re-offending appear to be reasonable. His current relationship is a positive indicator, although it is early days. He has a history of employment. His family support is important. He has not, however, to my knowledge renounced his membership of the Comancheros. He has simply avoided contact with fellow members whilst he has been on bail because contact has been prohibited by a bail condition. It was submitted that his preparedness to accept a parole condition suggested by the Crown today that he continue to have no association with Comanchero members was confirmation of good rehabilitation prospects. I am more of the view that it would favour a positive finding on this subject if he was prepared to avoid contact of his own volition and not because of being ordered to do so.

1. The plea to riot came shortly before the retrial was due to commence.

1. 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.

1. 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 that I should assess the utilitarian value of the offender's plea with regard to the circumstances of the trial that was thereby avoided. It would not have been a short trial by any means; the logistics of organising witnesses; and the disruption that would be caused at the airport by the likely need to take the jury on a view were relevant features.

1. In all the circumstances I have concluded that there should be a reduction of the sentence to be imposed in the order of 15 per cent.

1. It was submitted that I should take into account the fact that the offender has been on bail for the past almost six months. The conditions of that bail have been quite strict. He has been required to report to police on a daily basis and to not associate with any member or nominee member of the Comancheros. I have taken this into account, although I must say it is not a matter of great weight.

1. Further, it was submitted that I should take into account delay; the offender has had this matter "hanging over his head" for the past three and a half years. Being left in such a state of uncertainty as to his future is something to consider. It is something that was relevant in the sentencing of other offenders, although there has been a longer delay in the present case. It is a matter I will take into account in dealing with the next topic of parity.

Parity

1. 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.

1. 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.

1. 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. The ultimate submission by Mr Trevallion on behalf of the offender was that I should consider a sentence that, if it exceeded that imposed upon the others sentenced for riot, it would do so only marginally. If that submission was to be accepted, it was also submitted that I should give consideration to whether there was any utility in returning the offender to prison for such a relatively short period of time. I have considered this submission.

Special circumstances

1. It was submitted on the offender's behalf that there are special circumstances warranting a reduction of the proportion of the sentence to be represented by the non-parole period. Those circumstances were identified as being the need to promote the continued rehabilitation of the offender and because it was his first time in custody. It was also submitted that parity considerations should also influence the assessment of the length of the non-parole period. The submission was not opposed by the Crown.

1. I accept that there should be some reduction of the non-parole period. A longer period on parole will serve to ensure the commitment of the offender to adopting a prosocial and lawabiding life in the community. A key element of this would be the avoidance of association with members of the Comancheros, a matter I imagine would be of concern to the Parole Authority. The extent to which I am prepared to reduce the non-parole period is, however, limited because there remains a need for it to bear an appropriate relationship to the objective seriousness of the offence.

Pre Sentence Custody

1. The offender has been in custody from 3 July 2009 until 4 May 2012. It is appropriate to take this into account by backdating the sentence to 24 December 2009.

A commendation

1. Before imposing sentence there is something further I wish to say. It is appropriate that I say this now as this is the final offender to be dealt with.

1. The incident at Sydney airport on 22 March 2009 was quite without precedent in terms of it being an episode of extreme violence in a completely unexpected environment. One person died and 15 people have been prosecuted, 14 to conviction. The code of silence of outlaw motorcycle gangs is a matter of notoriety. Whilst it is impossible for a judge to know the intricacies of a police investigation, it is clear to me that this must have been one of enormous difficulty.

1. The sheer numbers of potential witnesses to be identified and interviewed, and the undoubted reluctance of many to become involved by making statements and giving evidence, are simply examples of those difficulties. It may not have been apparent to the jury, because attempts were made to conceal it for fear of prejudicing the accused, but all of the civilian witnesses were identified prior to trial only by number and not by name. To my knowledge, it is unprecedented that the identity of so many witnesses was withheld from even the defence lawyers. That is the measure of the fear which was held for the witnesses' sensitivities and safety. Placating them and fortifying them to give evidence at the trial must have been quite an exercise.

1. The people of New South Wales should be thankful that they are served by police officers who have engaged in such a difficult task with such professionalism and dedication. They should be commended for their work.

Sentence

1. Convicted

1. Sentenced to a term of imprisonment comprising a non-parole period of 4 years with a balance of the term of the sentence of 2 years. The sentence is to date from 24 December 2009. The offender will be eligible for release on parole upon the expiration of the non-parole period on 23 December 2013. The total term of the sentence will expire on 23 December 2015.

1. That is a total sentence of 6 years. Without the offender's plea of guilty, it would have been one of 7 years.

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Decision last updated: 26 October 2012