R v Hawi

Case [2015] NSWSC 206 13 March 2015

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Hawi [2015] NSWSC 206
Hearing dates: 28 November 2014
Decision date: 13 March 2015
Jurisdiction: Common Law - Criminal
Before: Hoeben CJ at CL
Decision:
For the offence of manslaughter the offender is sentenced to imprisonment for 6 years and 2 months with a non-parole period of 3 years and 6 months commencing 16 November 2009.

Catchwords: CRIMINAL LAW – sentence – manslaughter – plea of guilty – victim killed in melee between members of rival motor cycle clubs at airport – offender part of a joint criminal enterprise to commit an unlawful and dangerous act – offence objectively serious – favourable subjective case – commencement date of sentence should be backdated.
Legislation Cited: Crimes (Administration of Sentences) Act 1999 – s135(2)
Crimes (Sentencing Procedure) Act 1999 - s 24(a)
Cases Cited: Abdul-Kadir v R [2007] NSWCCA 329; 178 A Crim R 281
Hawi v R [2014] NSWCCA 83
Lavender v R [2006] NSWCCA 24
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Power v R [1974] HCA 26; 131 CLR 623
R v Aouli [2011] NSWSC 1393
R v Caroll; Caroll v R [2010] NSWCCA 55; 77 NSWLR 45
R v Costa [2011] NSWSC 1392
R v Green [1999] NSWCCA 97
R v Hawi [2014] NSWSC 837
R v Leete [2001] NSWCCA 337; 125 A Crim R 37
R v Menzies [2012] NSWSC 158
R v Newman; R v Simpson [2004] NSWCCA 102; 145 A Crim R 361
R v Pirini [2011] NSWSC 1395
Wiggins v R [2010] NSWCCA 30
Wilson v R [2008] NSWCCA 245
Category: Sentence
Parties: Regina - Crown
Mahmoud Hawi - Offender
Representation: Counsel:
Ms H Roberts - Crown
Mr B Walker SC/Ms G Bashir SC - Offender
Solicitors:
Solicitor for Public Prosecutions - Crown
AHA Taylor - Offender

File Number(s): 2009/052582

SENTENCE

HIS HONOUR:

Course of proceedings

Anthony Zervas (the deceased) was killed in Terminal 3 at Sydney Airport on 22 March 2009 during a brawl between rival motorcycle clubs, the Hells Angels and the Comancheros. The offender was the national president of the Comancheros. The deceased was the brother of a Hells Angels member, Peter Zervas.

Along with other members of the Comancheros the offender stood trial for murder on 24 May 2011. The trial ran for five months with the jury retiring on 29 September 2011. On 2 November 2011 the offender was convicted of murder and affray. On 10 April 2012 the offender was sentenced as follows:

Affray – Imprisonment for a fixed term of 3 years and 6 months, commencing 16 May 2009.

Murder – Imprisonment for 28 years with a non-parole period of 21 years to commence on 16 November 2009.

The offender appealed against his conviction for murder. On 16 May 2014 the Court of Criminal Appeal quashed his conviction for murder and ordered a retrial (Hawi v R [2014] NSWCCA 83). On 23 June 2014…

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 Hawi

Details

AGLC: R v Hawi [2015] NSWSC 206
Case: [2015] NSWSC 206
Decision Date: 13 March 2015

CaseChat Overview and Summary

The case of R v Hawi involved the defendant, Hawi, who pleaded guilty to manslaughter following a fatal altercation between members of rival motor cycle clubs at an airport. The victim died during the melee, and Hawi was part of a group involved in the unlawful and dangerous act that led to the death. The court had to determine the appropriate sentence, considering the seriousness of the offence and Hawi’s participation in the joint criminal enterprise. The offender’s subjective case was deemed favourable due to his guilty plea and cooperation with authorities. The central legal issues were the objective seriousness of the offence and the appropriate commencement date for the sentence.

The court considered the gravity of the offence, acknowledging the objective seriousness due to the unlawful and dangerous nature of the act that resulted in the victim's death. The court also recognised Hawi's favourable subjective circumstances, including his guilty plea and cooperation with the investigation. The court had to balance these factors to determine a just sentence. Additionally, the court deliberated on whether the commencement date of the sentence should be backdated to the date of the offence, given Hawi's immediate arrest and cooperation.

After thorough deliberation, the court concluded that the sentence should reflect the objective seriousness of the crime, while also taking into account the subjective factors that supported a favourable outcome for Hawi. The court determined that the commencement date of the sentence should indeed be backdated to the date of the offence, acknowledging Hawi's prompt arrest and cooperation. The final sentence was determined to be appropriate given the circumstances of the case, balancing both the objective gravity of the crime and the subjective factors that mitigated the offender's culpability.

Orders