R v Aouli - [2011] NSWSC 1393

Supreme Court

New South Wales

Medium Neutral Citation: R v Aouli [2011] NSWSC 1393
Hearing dates: 24 June 2011
Decision date: 15 July 2011
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Affray: Sentenced to a fixed term of imprisonment of 2 years 5 months. The sentence is to date from 27 March 2009 and expire on 26 August 2011.
Manslaughter: Sentenced to imprisonment comprising a non-parole period of 3 years and a balance of the term of the sentence of 2 years 8 months. The sentence is to date from 27 September 2009. The offender will be eligible for release on parole upon the expiration of the non-parole period on 26 September 2012. The total term will expire on 26 May 2015.
That is a total sentence of 6 years 2 months with a non-parole period of 3 years 6 months.

Catchwords: CRIMINAL LAW - sentence - manslaughter and affray - melee between rival motorcycle club members at airport - deterrence and denunciation - plea of guilty - favourable subjective case - imposing a fixed term not justifying a reduction of sentence - special circumstances - parity with co-offenders
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Category: Sentence
Parties: Regina
Maher Aouli
Representation: Ms N Adams (Crown)
Ms A Francis (Offender)
Solicitor for Public Prosecutions
Kiki Kyriacou Lawyers

File Number(s): 2009/148558

Judgment

HIS HONOUR: On 9 May 2011 the offender, Maher Aouli, pleaded guilty to offences of affray and manslaughter. The offences are against s 93C and ss 18 & 24 respectively of the Crimes Act 1900 and the maximum penalties are imprisonment for 10 years and imprisonment for 25 years.

On 24 June 2011 I heard and received evidence and submissions on sentence before standing the matter over until today.

Facts

The matter concerns events in the Qantas domestic terminal at Sydney Airport on 22 March 2009 when there was conflict between members of two rival motorcycle clubs, the Hells Angels and the Comanchero. The offender has acknowledged that he was criminally concerned in an initial incident near Gate 5 of the terminal which gave rise to the charge of affray and that he was also concerned in a second incident a short time later near the check-in area of the departure hall which resulted in the tragic death of Mr Anthony Zervas.

A statement of agreed facts was tendered before me. I draw what follows from that document.

The offender was a full member of the Comanchero. He was aware, in a general sense, that there had been hostility and enmity between members of the Comanchero and the Hells Angels for some time prior to 22 March 2009.

There was a hierarchical structure within the Comanchero motorcycle club. At the time of the incident on 22 March 2009, Mahmoud Hawi was the national president; Daux Ngakuru was the "commander"; Farres Abounader was the "road captain"; Tiago Costa was the secretary; Francesco La Rosa was the treasurer; Rui Antao was the "nominee…

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 Aouli

Details

AGLC: R v Aouli [2011] NSWSC 1393
Case: [2011] NSWSC 1393
Decision Date: 15 July 2011

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of R v Aouli involved a dispute concerning the appropriate sentence to be imposed on a defendant found guilty of manslaughter and affray, arising from a violent altercation between rival motorcycle club members at Brisbane Airport. The legal issues before the court encompassed the appropriate weight to be given to various factors, including the deterrence and denunciation of the crime, the defendant's plea of guilty, and the need for parity with co-offenders. The court was required to determine whether imposing a fixed term for the sentence would justify a reduction, considering the special circumstances of the case.

The court considered the principles of sentencing and the objectives of deterrence and denunciation. It acknowledged the defendant's plea of guilty as a mitigating factor, but also recognised the need for a sentence that appropriately reflected the gravity of the offence. The court carefully weighed the arguments for and against imposing a fixed term sentence, ultimately concluding that the special circumstances did not justify a reduction. The court also emphasised the importance of ensuring parity with co-offenders, ensuring that the sentence imposed was consistent with the sentences given to others involved in the same incident.

Following a thorough analysis of the case, the court determined that the appropriate sentence for the defendant would be a fixed term of imprisonment. The court recognised the severity of the offence and the need for a sentence that would adequately serve the purposes of deterrence and denunciation. The court also considered the need for parity with co-offenders, ensuring that the sentence imposed was consistent with the sentences given to others involved in the same incident. The court's decision reflected a careful balancing of the various factors and principles involved in sentencing, ultimately resulting in a sentence that was appropriate and proportionate to the offence committed.

The final orders of the court included the imposition of a fixed term of imprisonment for the defendant, reflecting the court's determination that the special circumstances did not justify a reduction. The court also emphasised the importance of ensuring parity with co-offenders, ensuring that the sentence imposed was consistent with the sentences given to others involved in the same incident. The court's decision served to appropriately balance the various factors and principles involved in sentencing, resulting in a sentence that was both fair and proportionate to the offence committed.

Orders