R v Eleter

[2003] NSWCCA 130

CITATION:	R v Eleter and Anor [2003] NSWCCA 130
HEARING DATE(S):	10/04/03
JUDGMENT DATE:	20 May 2003
JUDGMENT OF:	Simpson J at 1; Hidden J at 1; Bell J at 1
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW: Appeal against sentence - affray - agreed facts - whether sentencing judge influenced by matters not in evidence - young offenders - whether sentence excessive - whether special circumstances should have been found.
LEGISLATION CITED:	Crimes Act 1900 (s93C) Crimes (Sentencing Procedure) Act 1999 (s10)
CASES CITED:	R v AEM Snr & Ors [2002] NSWCCA 58 R v Goh [2002] NSWCCA 234 R v Huynh & Ors [2000] NSWCCA 18 R v Simpson (2001) 53 NSWLR 704 The Queen v De Simoni (1981) 147 CLR 383
PARTIES :	Crown Tony Eleter George Eleter
FILE NUMBER(S):	CCA 60074/2003; 60073/2003
COUNSEL:	PJP Power SC - Crown G Jones - Tony Eleter W Washington - George Eleter
SOLICITORS:	SE O'Connor - Crown DJ Humphreys - Tony Eleter Ford Gaitainis Lawyers - George Eleter

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70208/02 70017/02
LOWER COURT JUDICIAL OFFICER :	Dunford J

60073/03
60074/03

SIMPSON J
HIDDEN J
BELL J

Tuesday, 20 May, 2003

REGINA v Tony ELETER

REGINA v George ELETER

JUDGMENT

1 THE COURT: The applicants, Tony Eleter and George Eleter, pleaded guilty before Dunford J to a charge of affray, arising out of a violent incident at Campsie on 3 November 2000 during which a man was shot dead. Affray is now an offence created by s 93C of the Crimes Act, carrying a maximum sentence of five years imprisonment. His Honour sentenced each of the applicants to imprisonment for sixteen months with a non-parole period of twelve months. Each of them seeks leave to appeal against that sentence.

Facts

2 The applicants, together with their father, Youssef Eleter, their brother, Michael Eleter, and a juvenile referred to by his initials, JO, were originally charged with murder and affray. Ultimately, Michael Eleter pleaded guilty to murder and the other offenders pleaded guilty to an indictment charging them jointly with affray.

3 An agreed statement of facts was tendered, together with some further material which was not inconsistent with those facts. His Honour summarised the facts in his remarks on sentence as follows:

On the afternoon of 3 November 2000, Tony Eleter went to La Hood’s Snooker Hall in Beamish Street, Campsie with JO where George Dib was playing pool with a friend of his, Khalil Gerges. There was a confrontation between Dib and Tony Eleter at the snooker hall and they agreed to have a fistfight at a nearby park, which they did, with JO and Khalil Gerges looking on. In the fight both sustained cuts and bruises and both were bleeding to the face. At the end of the fight they shook hands and went their separate ways, accompanied respectively by JO and Khalil Gerges.
There had previously been animosity between Dib and Michael Eleter, the older brother of Tony Eleter, in relation to a debt and when Michael Eleter learned that evening of the fist fight between his brother and Dib he became angry upon seeing Tony’s injuries and this exacerbated the pre-existing enmity that Michael Eleter felt towards Dib.
After the fight Dib went to the Total Eternity Services brothel at 2 Clements Street, Bankstown where he worked, had a spa and shower, cleaned himself up and got dressed. At about this time, Joseph Attallah, owner of the brothel began to receive threatening telephone calls from other members of the Eleter family to the effect that family members would be coming to the brothel to exact revenge for the fight between Tony Eleter and Dib earlier in the park. Attallah told them he did not want any trouble at the brothel.
At about 6.15pm, Tony Eleter, his father, Youssef Eleter, and his twin brother, George Eleter, arrived outside the brothel in a motor vehicle, and at about the same time, or very shortly after, JO arrived in his vehicle, along with Michael Eleter and other young men, whose identities are not known. Michael Eleter was armed with a 9-millimetre automatic pistol, later identified as the murder weapon.
Attallah and Dib were already in the front yard of the brothel premises and an argument developed between them and the persons who arrived in the first vehicle (Youssef Eleter, Tony Eleter and George Eleter). The group from the second vehicle then joined them in the front yard of the brothel and the argument became more heated. Dib and Attallah retreated towards the front door of the premises and tried to block the group from entering. Tony Eleter struck Attallah to the head, causing a cut to his head and the groups then surged forward with Youssef pushing his way into the premises and forcing Dib and Attallah back into the premises. Once Youssef was inside the premises he closed the door behind him, leaving the rest of the Eleters and JO outside. Youssef Eleter then continued to struggle with Attallah inside the premises and Youssef and Attallah were screaming at each other.
About this time Michael Eleter fired 10 shots at the front windows on either side of the entrance to the premises. Victor Zaccak who was inside the front office of the premises, was struck by one of these bullets and died almost immediately. Shortly afterwards, the prisoners returned to their respective vehicles and left the scene. There was no evidence that Michael Eleter was aware at the time that anyone had been injured. The plea to murder by Michael Eleter was tendered by the prisoner and accepted by the Crown on the basis that in firing the shots as he did, the prisoner acted with a reckless indifference to human life.

4 His Honour made some comments about the agreed facts to which it will be necessary to return when dealing with the applications in this Court.

Subjective cases

5 The applicants are twins, who were nineteen years old at the time of the offence and are now twenty-two. Each of them has a minor criminal record, which appears to be of no present significance and to which his Honour made no reference in his remarks. They are of Lebanese extraction, and each had been educated and gained experience in the electrical trade in Lebanon. In this country they participated in family business ventures, including a removalist business.

6 Family ties and loyalties, it seems, are very strong. From what the applicants (and their father and brother) told the authors of pre-sentence reports and psychological reports, his Honour concluded that their attitude to the incident at Campsie was as follows:

… the general attitude of the various members of the Eleter family seems to be that they were justified and that there was nothing wrong in them going to the brothel as a group intending to use or threaten violence, that such conduct was quite in order because of their strong family solidarity and support for each other, but that it is most unfortunate and they truly regret that anyone got killed.

Sentencing factors

7 On the agreed facts, his Honour was satisfied that the applicants went to the brothel “with the purpose of exacting retribution and/or revenge” from George Dibb for his earlier fight with Tony Eleter. His Honour found that the affray was not premeditated, although it could not be described as “totally spontaneous.” He noted that the offence of affray is directed to the maintenance of public order, and observed that the community does not tolerate people settling disputes by taking the law into their hands, particularly “by force of numbers.” He referred to the need for the sentences to reflect considerations of deterrence, both general and particular, and added:

Family solidarity and support is a commendable virtue, but not when it causes a breach of the peace and threatens the lives or comfort of other people.

8 His Honour had regard to the youth of the juvenile offender, JO, who was seventeen years old at the time of the offence. However, in relation to the applicants he said:

… I do not regard the youth of Tony and George Eleter (they were nineteen years of age) as any reason in their case to diminish the significance of general and personal deterrence in their sentences as they are of the age who most need deterrence from offences of this nature.

9 In arriving at the sentence passed upon each applicant, his Honour allowed a discount of twenty percent for his plea of guilty. In setting the non-parole period in each case, his Honour did not find special circumstances.

The applications

10 In this Court, counsel for the applicants argued that the sentences are manifestly excessive, that they fail to recognise the relative youth of the applicants, and that his Honour erred in declining to find special circumstances. It was also said that the sentences fail to distinguish between the culpability of each of the applicants and of their father, Youssef Eleter, upon whom the same sentence was passed. However, another matter was raised which should be dealt with at the outset.

11 It was said that his Honour fell into error by considering facts beyond those contained in the statement of agreed facts. This argument was founded upon the following passages from the remarks on sentence:

The prisoners were all originally charged with murder and affray and following committal and arraignment their trial was set for Monday, 16 September 2002. That day I was asked by all parties to adjourn the matter for two days, which I did and then on 18 September I was asked to remain off the Bench for some considerable time, after which the Crown presented a fresh indictment containing only the charges now before the Court. To these charges the prisoners pleaded guilty as indicated on the basis of Agreed Statements of Facts.
It concerns me that in the Crown Case Statement prepared prior to the trial there were allegations that, apart from Michael Eleter, two of the other prisoners were also armed with handguns when they went to the brothel, and that prior to them going there, Mrs Attallah had been approached at her home by members of the Eleter family and told that George Dib would be dead within a week. These facts were omitted from the Agreed Statement of Facts, I cannot take them into account in sentencing; and I do not. Needless to say, I would have regarded an affray with guns as much more serious than an affray without guns, and I would also regard a threat that George Dib would be dead within a week as a matter of the utmost concern. If those matters had formed part of the facts for sentencing purposes, I would have regarded the affray as close to the worst category of case attracting the maximum penalty, or close to it, for such offence. But in accordance with the principles laid down in The Queen v De Simoni (1981) 147 CLR 383, I disregard those matters which are not part of the Agreed Facts and which have not been proved.
I am not in a position to judge how strong the evidence was that was available to the Crown on these points, but whilst the Crown’s acceptance of pleas of guilty on the basis of excluding material facts which aggravate the criminality of the conduct involved may effect a great saving of court time and help clear the backlog in the court lists, it often results in the offenders not being adequately punished for what they have done; and in this way justice is denied to the community as a whole. If accused persons are minded to plead guilty to charges but dispute the Crown’s version of the facts, it is still open to them to do so, in which case the Crown must prove the facts disputed by admissible evidence and beyond reasonable doubt.

12 Later his Honour said:

Assuming as I must for sentencing purposes, although the true facts are probably otherwise, that none of the others knew that Michael Eleter had a gun, there is always the danger in cases of affray that someone will overreact or do something unexpected and the situation will get out of hand, which is exactly what happened.

Reliance was placed upon the words “although the true facts are probably otherwise…”.

13 These comments, it was submitted, suggest that his Honour was unconsciously influenced by material which was not before him for the purpose of sentence or, at the very least, create a reasonable apprehension that he was. It is obvious that his Honour was concerned about the course which the proceedings had taken and felt it appropriate to say so. Nevertheless, he stated in the clearest of terms that he would determine sentence only upon the agreed facts, and the sentences themselves do not suggest otherwise. We are far from persuaded that his Honour was, or could reasonably be perceived to have been, influenced by material which was not in evidence.

14 We turn, then, to the complaint that the sentences do not reflect the different levels of culpability of each of the applicants and of their father. As to the applicants themselves, it was pointed out that Tony Eleter struck Joseph Attallah, whereas George Eleter did not inflict violence upon anyone, and it was argued that George Eleter should accordingly have been dealt with more leniently. It does not appear that any such submission was made to his Honour, who made no reference to that distinction in his remarks. (Counsel who appeared for the applicants in this Court had not appeared in the sentence proceedings.)

15 In any event, in the circumstances of this case, that distinction did not necessarily call for different sentences. It was the conduct of the group of offenders, who had arrived at the scene at about the same time, bent on retribution, which was significant here. It is important not to lose sight of the nature of the offence of affray, which is spelled out in the first two subsections of s 93C of the Crimes Act:

93C(1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 5 years.
(2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purpose of subsection (1).

16 This is not to deny that there may be cases in which the level of involvement of the various participants in an affray calls for some differentiation in penalty. As between the applicants, however, this was not such a case.

17 On the other hand, the culpability of Youssef Eleter was greater than that of the applicants. His Honour recognised as much in his remarks, as follows:

I am particularly concerned about the conduct of Youssef, as the father who no doubt exercised paternal influence over the others, and appears to have led the approach at the premises of Total Eternity Services when, not only should he not have been involved himself, but he should have discouraged and sought to prevent any such action on his sons’ part. I therefore regard him as more responsible than the others for the affray.

18 However, there were subjective features of Youssef Eleter’s case which called for a measure of leniency which the applicants could not claim. He was forty-eight years old at the time of sentence, and there was evidence that he had a number of significant health problems which would make his experience of imprisonment more burdensome than usual. In the result, his Honour did not differentiate between the sentence imposed upon him and that upon the applicants because he considered that “his incarceration will be more onerous than that of the others owing to his greater age and his physical infirmities”. There is no error in this approach.

19 The same must be said of the complaint that his Honour failed to afford appropriate weight to the applicants’ relative youth. The undoubted significance of youth in a sentencing determination has been the subject of ample authority, recently revisited in R v AEM Snr & Ors [2002] NSWCCA 58 at pars 96-98. Notwithstanding the desirability of fostering the rehabilitation of a youthful offender, considerations of general and particular deterrence remain important. His Honour’s approach in the present case was consistent with that authority. His Honour passed a lesser sentence upon the juvenile, JO in the light of his youth, but the two years difference in age between that offender and the applicants was significant and clearly justified that course.

20 It was submitted that his Honour should have found special circumstances in the case of each applicant. His Honour referred to that issue, but said that he found no special circumstances “as matters of mitigation have been taken into account in fixing the head sentences…”. Yet again, that was an approach open to his Honour. No doubt, there were features of the case which might have justified a finding of special circumstances, but that does not mean that his Honour’s declining to do so amounted to an error warranting appellate intervention: R v Simpson (2001) 53 NSWLR 704, per Spigelman CJ at par 73.

21 Finally, it was submitted that the sentences of sixteen months imprisonment are manifestly excessive. Reliance was placed upon two decisions of this Court and Judicial Commission sentencing statistics.

22 In R Huynh & Ors [2000] NSWCCA 18, the offenders had been placed on recognizances for an offence of affray to which they had pleaded guilty. A Crown appeal was dismissed. The affray was a serious incident, in which one young man was stabbed to death and two others, including one of the respondents, were injured. Hulme J, with whom Spigelman CJ and Smart AJ agreed, distinguished between affrays which are premeditated and those which “break out spontaneously in response to an unforeseen event” (par 29). In that case, while there was premeditation by some of those involved in the affray, the respondents had no such premeditation, and Hulme J considered that their lenient treatment was justified by the limited extent of their “knowledge, participation and the duration of their participation…” (par 35).

23 R v Goh [2002] NSWCCA 234 was also a Crown appeal. Following the respondent’s plea of guilty, a charge of affray had been dismissed pursuant to s10 of the Crimes (Sentencing Procedure) Act 1999. It was that dismissal which was the subject of complaint on appeal, the Crown accepting that a non-custodial disposition was appropriate. This affray was also an ugly incident but no one was killed. It seems that some of the participants were injured, including the respondent himself, but no one seriously. Again, the appeal was dismissed. Blanch J, with whom Spigelman CJ and Adams J agreed, noted the findings of the primary judge that the respondent “was only peripherally involved in what had happened and that he was as much a victim as he was a perpetrator” (par 13).

24 The relative lack of spontaneity of the present affray, and the level of involvement of the applicants, distinguish this case from those two cases. The Judicial Commission statistics disclose that, of the fifty cases recorded, eighteen resulted in sentences of fulltime imprisonment. Sentences in those eighteen cases ranged from six months to three years, the most common sentence (in eight of the cases) being twelve months.

25 While this Court has frequently said that figures of this kind should be approached with caution, especially when the sample is relatively small, it does appear that the sixteen month sentences imposed by his Honour are towards the top of the range. However, given the serious features of this offence of affray, it cannot be said that they were beyond the scope of the legitimate exercise of discretion. The sentences are severe but they are not manifestly excessive.

26 Leave to appeal is granted but the appeal is dismissed.

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Last Modified: 05/27/2003