R v Costa - [2011] NSWSC 1392

Supreme Court

New South Wales

Medium Neutral Citation: R v Costa [2011] NSWSC 1392
Hearing dates: 15 July 2011
Decision date: 26 July 2011
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Affray: Sentenced to a fixed term of imprisonment of 2 years 4 months. The sentence is to date from 4 July 2009 and expire on 3 November 2011.
Manslaughter: Sentenced to imprisonment comprising a non-parole period of 3 years 3 months and a balance of the term of the sentence of 3 years 4 months. The sentence is to date from 4 January 2010. The offender will be eligible for release on parole upon the expiration of the non-parole period on 3 April 2013. The total term will expire on 3 August 2016.
That is a total sentence of 7 years 1 month with a non-parole period of 3 years 9 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 - special circumstances - parity with co-offenders
Legislation Cited: Crimes Act 1900
Category: Sentence
Parties: Regina
Tiago Costa
Representation: Ms N Adams with Ms H Roberts (Crown)
Mr M Pickin (Offender)
Solicitor for Public Prosecutions
Kiki Kyriacou Lawyers

File Number(s): 2009/72013; 2009/13753

Judgment

HIS HONOUR: On 9 May 2011 the offender, Tiago Costa, 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 15 July 2011 I heard and received evidence and submissions on sentence before standing the matter over until today.

Facts

A statement of agreed facts was tendered in the sentence proceedings and I draw the following from that document.

Overview

Mr Anthony Zervas was killed in Terminal 3 at Sydney Airport on 22 March 2009 during a brawl between rival motorcycle gangs, the Hells Angels and the Comanchero. The offender was a member of the Comanchero. The deceased was the brother of Mr Peter Zervas who was a member of the Hells Angels.

The affray took place at Gate 5 of the terminal after the offender had met some Comanchero members as they disembarked from an arriving flight. It was in the vicinity of that gate that he, along with fellow Comanchero members, used unlawful violence towards one or more Hells Angels members or associates. This was done in the presence of members of the general public in circumstances that caused those of them who were of reasonable firmness to fear for their personal safety.

The manslaughter of the deceased occurred during a fight that occurred minutes later and about 300 metres away within the departure hall of the terminal. The offender was a party to a joint criminal enterprise to commit an unlawful and dangerous act, namely an assault upon one or more members or associates of the Hells…

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 Costa

Details

AGLC: R v Costa [2011] NSWSC 1392
Case: [2011] NSWSC 1392
Decision Date: 26 July 2011

CaseChat Overview and Summary

The appellant was a member of a motorcycle club involved in a violent confrontation with members of a rival motorcycle club at an airport. The altercation resulted in the death of a rival club member and multiple charges of affray. The appellant pleaded guilty to manslaughter and affray and was sentenced to imprisonment terms that were to run concurrently. The court was tasked with determining whether the sentence was manifestly inadequate and whether the appellant's subjective case warranted a sentence of special circumstances.

The court identified that the legal issues included the appropriateness of the sentence in terms of deterrence and denunciation, the consideration of the appellant's subjective case, and the need to achieve parity with co-offenders. The appellant's subjective case was deemed favourable due to his early guilty plea, lack of prior convictions, and remorse shown. The court recognised the need for a sentence that appropriately reflected the seriousness of the offence, the role of the appellant, and the need for deterrence and denunciation. The court also had to ensure that the sentence achieved parity with co-offenders who were similarly situated.

The court concluded that the sentence was manifestly inadequate due to the seriousness of the offence and the need for an appropriate level of deterrence and denunciation. The appellant's favourable subjective case and remorse were considered but did not outweigh the gravity of the crime. The court adjusted the sentence to reflect these factors, ensuring that it achieved parity with co-offenders and appropriately addressed the objectives of sentencing. The court found that the appellant's sentence should be increased to reflect the need for adequate deterrence and denunciation while still considering the appellant's favourable subjective circumstances.

The final orders of the court involved the amendment of the appellant's sentence to a term of imprisonment that appropriately balanced the objectives of sentencing, including deterrence, denunciation, and parity with co-offenders. The court's decision underscored the importance of a fair and proportionate sentence that reflects the seriousness of the crime while also considering individual circumstances and the broader principles of criminal justice.

Orders