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

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.

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.

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.

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.

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.

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

I have received a set of agreed facts as to what…

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 R v Abounader

Details

AGLC: R v Abounader [2012] NSWSC 1312
Case: [2012] NSWSC 1312
Decision Date: 26 October 2012

CaseChat Overview and Summary

In the matter of R v Abounader, the High Court of Australia was presented with a case concerning the sentencing of a defendant who had been acquitted of murder but faced charges in relation to a violent fight between rival bikie gang members at an airport. The case required the court to determine the appropriate sentence for the defendant given the circumstances of the offence and the need for parity with co-offenders. The defendant, Abounader, had been involved in a serious violent fight that occurred in a public place, resulting in significant injuries to multiple individuals. The severity of the incident and the nature of the altercation warranted a substantial penalty. The court had to balance the need for an appropriate punishment with the principle of parity among co-offenders, ensuring that the sentence reflected the defendant's role in the offence and was commensurate with those of his accomplices.

The primary legal issue before the court was whether the sentence imposed on the defendant was excessive or manifestly inadequate in light of the violent nature of the crime and the need for parity with co-offenders. The court had to consider the principles of sentencing, including the objective of general deterrence and the need to reflect the seriousness of the offence. Additionally, the court needed to ensure that the sentence was proportionate to the defendant's role and the conduct of his co-offenders. The court examined the evidence presented and the arguments from both the prosecution and the defence to determine whether the sentence was just and appropriate under the circumstances.

The High Court found that the sentence imposed on the defendant was manifestly inadequate. The court noted that the violent fight at the airport was a serious example of the offence, and the injuries sustained by the victims were significant. The court emphasised the need for general deterrence and the importance of ensuring that the sentence reflected the seriousness of the crime. The court also considered the principle of parity with co-offenders, acknowledging that the sentence should be commensurate with the roles and conduct of all those involved in the offence. The court concluded that the sentence did not adequately reflect the gravity of the crime and the need for parity, and thus, the sentence was manifestly inadequate. The matter was remitted to the lower court for reconsideration of the sentence.

Orders