R v Eken; R v Potrus - [2012] NSWSC 2

Supreme Court

New South Wales

Medium Neutral Citation: R v Eken; R v Potrus [2012] NSWSC 2
Hearing dates: 17 November 2011
Decision date: 09 January 2012
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Each offender convicted and sentenced to imprisonment for 5 years with a non-parole period of 3 years

Catchwords: CRIMINAL LAW - sentence - riot - violent fight between rival bikie gang members at airport - serious offence but not worst case category - conviction after protracted trial - acquittal for murder and manslaughter - offers to plead guilty rejected by prosecution - deterrence - special circumstances - parity with co-offenders
Legislation Cited: Crimes Act 1900
Cases Cited: R v Aouli [2011] NSWSC 1393
R v Costa [2011] NSWSC 1392
R v La Rosa [2011] NSWSC 1394
R v Pirini [2011] NSWSC 1395
Category: Sentence
Parties: Regina
Ishmail Eken
Usama Potrus
Representation: Ms N Adams with Ms H Roberts (Crown)
Mr P Young SC (Eken)
Mr R Driels (Potrus)
Solicitor for Public Prosecutions
Purcell Felton Lawyers (Eken)
Barakat Lawyers (Potrus)

File Number(s): 2009/60143; 2009/157332 2009/58679
Publication restriction: Non-publication of anything that would identify witnesses known as SP and AL

Judgment

HIS HONOUR: Ishmail Eken was found by a jury to be not guilty of murder and manslaughter but guilty of riot. This is an offence against s 93B Crimes Act 1900 for which there is prescribed a maximum penalty of imprisonment for 15 years. He was also acquitted of a separate charge of affray which was alleged to have occurred shortly before the riot.

Usama Potrus was also found not guilty of murder and manslaughter but guilty of riot. He was not charged with the affray.

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.

Facts

By way of background, it was an agreed fact in the trial that there was ongoing hostility between two rival motorcycle gangs, the Comancheros and the Hells Angels, and that each of the accused were aware of this state of affairs. 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.

The riot occurred in the Qantas domestic terminal at Sydney Airport on 22 March 2009 when there was a confrontation between members of the Hells Angels and the Comancheros. Both offenders were members of the Comancheros. Indeed, Mr Eken was wearing a t-shirt with a prominent Comanchero logo at the time. 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…

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.

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Details

Case: [2012] NSWSC 2
Decision Date: 09 January 2012

CaseChat Overview and Summary

The respondents, Eken and Potrus, were involved in a violent altercation between members of rival bikie gangs at an airport, leading to a protracted criminal trial. The respondents were ultimately acquitted of murder and manslaughter but convicted of riot and other related offences. The prosecution had previously rejected offers from the respondents to plead guilty. The case before the court involved the determination of an appropriate sentence for the respondents' involvement in the serious criminal activity. The primary legal issues centred around the appropriate level of punishment, taking into account the gravity of the offence, the circumstances of the crime, and the need for deterrence. The court had to balance these considerations with the principle of parity, ensuring that the sentence was commensurate with the sentences of co-offenders and did not deviate significantly without justification.

The court acknowledged the severity of the crime, which involved a violent fight between members of rival bikie gangs at an airport. However, it also recognised that the offence, while serious, did not fall into the worst category of crimes. The respondents' offers to plead guilty were rejected by the prosecution, resulting in a trial that ultimately led to their convictions for riot and other related offences. The court considered the need for deterrence, the special circumstances of the case, and the principle of parity in determining the appropriate sentence. The court determined that while the offence was serious, the respondents' convictions for riot and related offences, as opposed to murder or manslaughter, indicated a level of culpability that warranted a sentence within the mid-range of penalties for such offences.

In conclusion, the court imposed a sentence that reflected the gravity of the crime while also considering the special circumstances and the principle of parity. The respondents were sentenced to imprisonment, acknowledging the need for a punitive response to the violent nature of the crime, while also ensuring consistency with the sentences of co-offenders. The court's decision was based on a careful balance of the relevant factors, aiming to achieve a just outcome that addressed the seriousness of the offence, the need for deterrence, and the principle of parity.

Orders