R v Hawi
[2012] NSWSC 332
•10 April 2012
Supreme Court
New South Wales
Medium Neutral Citation: R v Hawi [2012] NSWSC 332 Hearing dates: 24 February 2012 Decision date: 10 April 2012 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Imprisonment for 28 years 6 months with non-parole period of 21 years 6 months
Catchwords: CRIMINAL LAW - sentence - murder and affray - violent confrontation between members of rival bikie gangs at airport terminal - offender leader of Comanchero gang - killing of associate of rival Hells Angels gang - claims of provocation, duress and self-defence rejected Category: Sentence Parties: Regina
Mahmoud HawiRepresentation: Ms N Adams with Ms H Roberts (Crown)
Mr P Dunn QC (Offender)
Solicitor for Public Prosecutions
Sid Hawach & Co
File Number(s): 2009/50087; 2009/52582 Publication restriction: Non-publication of anything that would identify witnesses known as SP and AL
Judgment
HIS HONOUR: On 2 November 2011, the offender, Mahmoud Hawi, was found guilty by a jury of the offences of affray and murder.
The maximum penalty for affray is imprisonment for 10 years and for murder it is imprisonment for life. A standard non-parole period of 20 years is prescribed for the offence of murder. These are statutory guideposts that I am required to take into account, along with all of the other facts, matters and circumstances pertinent to the assessment of sentence.
The trial commenced with the empanelment of the jury on 24 May 2011 with seven accused. The jury retired on 29 September 2011 and returned its verdicts on 2 November 2011.
I heard and received evidence and submissions on sentence on 24 February 2012 before standing the matter over until today.
Facts
The matter concerns events at the Qantas domestic terminal at Sydney airport on 22 March 2009 when there was conflict between members of rival outlaw motorcycle gangs, the Comancheros and the Hells Angels. The offender was the national president of the Comancheros and had been so since about 2002. The club had a hierarchical structure with strict and enforceable rules. These rules governed members' behaviour and reinforced a strong culture of loyalty of members to the club and to one another; cowardice was not tolerated. As the national president, the offender had "absolute power" in that he could overrule any decisions taken by members.
The Comancheros had been in conflict with the Hells Angels for some time. A business being conducted by persons associated with the Hells Angels in Brighton-le-Sands had been firebombed. A Hells Angels controlled tattoo parlour in Petersham was the subject of a drive-by shooting. A Hells Angels clubhouse in Crystal Street, Petersham had been bombed. It was the belief of police that the Comancheros were responsible for each of these incidents. Graffiti sprayed at the front of the premises in Brighton-le-Sands of the initials "ACCA" supported that belief. The initials stand for "Always Comanchero, Comanchero Always" (T3985.45).
Evidence of these incidents was not before the jury. However, it was an agreed fact that there was an ongoing hostility between the Comancheros and the Hells Angels and that each of the accused were aware of it.
A chance meeting with the Hells Angels president and the summoning of reinforcements to Sydney airport was the precursor to the affray and a subsequent riot which culminated in the murder of Mr Anthony Zervas.
The offender went to Melbourne for the weekend of 21 - 22 March 2009 with four of his Comanchero colleagues, Christian Menzies, Ishmail Eken, Pomare Pirini and Maher Aouli. They returned on Qantas flight 430, departing Melbourne at about midday and arriving in Sydney at about 1.30 pm. The offender became aware almost immediately after he boarded the plane that the president of the Hells Angels, Mr Derek Wainohu, was on the same flight. He was travelling alone.
The offender went out of his way to walk up and down the plane past Mr Wainohu and was observed by passengers to be glaring and exhibiting animosity towards him. He instructed Aouli and Eken to make contact by phone with fellow Comanchero members in Sydney for the purpose of having them attend the airport to meet the flight on arrival. The offender disputed this (T3817) but I accept the evidence of a passenger who said that he heard a man who was obviously Hawi say, "Get the guys to meet us at the other end" (T271). Mr Wainohu did likewise in respect of fellow Hells Angels members.
Seven Comanchero and seven Hells Angels members (or nominee members or associates of members) rallied to attend the airport with haste. Although not all of these people were full members of the respective gangs, for brevity I will simply refer to people as being members of the gang they were associated with.
The Comancheros who came to the airport were Fares Abounader, Usama Potrus, Zoran Kisacanin, Frank La Rosa, Tiago Costa, SP and AL (the latter two became prosecution witnesses and there is a non-publication order in respect of their identities).
The Hells Angels who came to the airport were Peter Zervas, his brother Anthony Zervas, Musa Ovalle, Elias Khoury, Tom Baker, Peter Martin and David Padovan.
The seven Comancheros came in two cars. They were in such haste that they by-passed the public car park and parked the cars illegally immediately outside the lower, baggage claim level of the terminal. They all alighted and went into the terminal, travelling upstairs by escalator to the departure level and then to the security screening point at the western end of the terminal. Five passed through the walk-through metal detectors while two, Messrs Abounader and Potrus, waited immediately outside. Abounader was armed with a knife, which was the obvious reason he did not submit to security screening. The five who had passed security immediately proceeded to Gate 5 to meet the arriving flight.
Two of the Hells Angels, Messrs Baker and Padovan, proceeded through to Gate 5 while the balance waited outside in the departure hall.
The affray at Gate 5
There was a confrontation almost immediately after the passengers disembarked. The offender approached Mr Wainohu on the concourse immediately opposite Gate 5. They argued. The offender noticed the group of Comancheros who had come to the airport approaching at a fast pace. Mr Wainohu walked a short distance away and then returned. The offender threw a punch at him. Others became involved in the fighting and the offender ended up on the ground fighting with Tom Baker. A number of the Comancheros turned on Mr Padovan and pursued him along the concourse, kicking and punching him until he went to the ground where he was further kicked and punched. He lost his shirt at some stage of the assault.
The fighting then broke up. The Comancheros re-grouped and Mr Padovan returned to Messrs Wainohu and Baker. Before the Comancheros left the scene, the offender called out threats in the direction of the Hells Angels. Witnesses gave evidence of him saying, "You're dead, you're fucking dead"; "Next time we see you, you're going to have bullet holes through you. You are a dead man walking"; or "You're a dead man, you're fucking dead. You've got bullet holes in you". The offender did not dispute that he said these things but denied that he was angry (T3828-3829). I do not accept this denial. I am satisfied that the offender was very angry indeed.
There were many members of the public at Gate 5 at the time of the affray, including children and elderly people. Many of them were shocked, horrified and scared by what they witnessed.
Into the departure hall
The Comancheros walked as a group towards the exit into the departure hall. The offender was surrounded by his subordinates. When they emerged from the bi-fold security doors into the departure hall they were met by Messrs Abounader and Potrus who had been waiting in the vicinity. Abounader had made and received telephone calls from Aouli in the intervening period. It is possible that Abounader passed on some information of interest to those who were in the secure area of the terminal and it is a reasonable inference that Aouli called back to alert Abounader to what had just occurred at Gate 5.
Stairs and escalators were immediately to the right of the Comancheros, which could have been used to conveniently and directly go down to the lower level where those who had luggage could collect it and where the cars were parked. However, instead of doing that, the group of 12 Comancheros walked towards the opposite end of the terminal. They could have walked in front of the check-in counters, which would have involved retracing the steps of the seven who had come to the airport. However, they walked behind the check-in counters. This meant that they were walking directly towards the group of five Hells Angels who were waiting about 70 metres away.
It seems to be most likely that this route was deliberately chosen because it was known that the Hells Angels were there. Abounader and Potrus had been waiting in the departure hall for sufficient time for them to have noticed. To counter such a proposition, it was a defence argument at trial that the group were simply retracing the steps taken by those who had arrived at the airport and that they were on their way to the cars in order to leave. How 12 men were going to fit into 2 cars was not explained. This attempt to provide an innocent explanation for the route taken by the Comancheros was quite preposterous. However, the evidence is insufficient for me to make a definitive finding that it was the offender's intention to confront the five Hells Angels.
If they were not already aware of the presence of the Hells Angels group, they soon became aware of them as they traversed the 70 odd metres from the bi-fold security doors. Zoran Kisacanin peeled off from the group and ran to the right, through to the front of the check-in counters and then turned left in what I am satisfied was a flanking manoeuvre. At about the same time, the balance of the Comanchero group quickened their pace.
The riot erupts
As the two groups came close, a violent confrontation was inevitable. This is particularly so given the history of hostility between the two gangs; the affray that had just occurred at Gate 5; and the vitriolic anger the offender had displayed at the conclusion of the affray only a few seconds earlier. The offender's hostile attitude towards the Hells Angels was probably well known to the others already but it must have been particularly evident to them at this point.
There was a short verbal exchange between the offender and Peter Zervas. Anthony Zervas was the first to make a move by attacking the offender. It was a pre-emptive strike in the face of an inevitable attack but it was foolish in the extreme. He was 161 cm tall and weighed only 58 kg while the offender was 178 cm tall with a heavy muscular build. A witness description of a man having "arms as big as legs" was apt for the offender. Anthony Zervas' decision was undoubtedly influenced by his intoxication. He was later found to have high levels of illicit drugs in his system.
The attack on the offender involved Anthony Zervas attempting to stab him with a pair of scissors. He managed to inflict some superficial injuries. From that point, however, all hell broke loose. Members of the two groups commenced to fight violently.
The nature of the violence that erupted is best described by referring to some descriptions given by witnesses. One said, "The group of them, they were all fighting one another. Then it started to move towards the check-in counters, towards the front glass doors. They were continually fighting. I heard things getting knocked over" (T898).
Another witness said that she heard yelling and looked up and saw "a rush of men coming through the little gaps between the counters"; seven or eight men; she then saw "the group of men running through the barriers, the barriers were falling over, passengers scrambling to get out of the way, punching" (T946).
A witness who was using a self service check-in kiosk in front of the check-in counters said that she heard yelling and a lot of swearing, including "I'm going to kill you, cunt". She looked over her shoulder and saw "someone like chasing someone and I saw them run through this part here [she indicated through the check-in counters] knocking over anything that was in their way. ... As they got slowed down by the people who dropped their bags off, it started breaking off into groups and then they started having their own little altercations, throwing punches, kicks, with barrier poles, signs, just about anything they could find" (T1024 - 1025).
The fighting moved from behind the check-in counters to the area at the front of the terminal. Witnesses described it as fighting between two groups with more men on one side than the other. There were references to it being an "all in brawl" with "everybody" punching. Bollards, normally clipped together with tape and used to guide queuing passengers, were unclipped and taken up and used as weapons in the fighting. These bollards have a heavy base and weigh 12 to 13 kilograms each.
A further witness description appears to have captured the essence of the riot. An airline pilot who was standing at one of the self-service check-in machines said "I saw approximately 12 to 16 males having - basically all fighting. They were fighting one on one, two on one, just a general brawl and melee is what I saw. I saw kicking, I saw punching and where these automatic kiosk check-in counters are there's a number of metal bollards holding ropes to organise the queues and I saw the metal bollards being thrown through the air and smashed on to people." (T1052)
The fighting, although short-lived, was shockingly vicious. One witness spoke of "an explosion of fighting" (T1281). This witness was sitting on a bench with her two very young children, one of whom was in a pram. She became "frozen with fear" and held her children close to protect them. Another witness said that she "saw the large group of men fighting incredibly violently and aggressively" (T2293). She said that the men were fighting in one group and then they split up into smaller groups.
Another witness referred to the fighting as "chaotic and quite wild and uncontrolled"; the men were "raging, really angry" (T1533-4). This witness and her companion fell over when he tried to pull her out of the way as the brawling continued into the area in front of the check-in counters. Her companion also gave evidence that there was a little girl in front of him who he grabbed and got out of the way.
The fatal assault
In the course of all of this, Anthony Zervas was pursued to the glass wall at the front of the terminal where he went to the ground. He was bludgeoned by at least one of the bollards and was stabbed in the chest and abdomen.
There were three stab wounds, one inflicted by a pair of scissors and the others by either scissors or a knife. They caused injuries to the liver, stomach and right lung and caused significant internal bleeding. The head injuries were severe, including fracturing at the base of the skull, bleeding over the surface of the brain and bruising of the brain tissue. Mr Zervas received immediate emergency medical assistance but it was futile.
The fatal assault upon Anthony Zervas was at the end of the riot. To the witnesses it no doubt seemed a lot longer but it was calculated from security camera footage to have taken less than a minute.
The Comancheros run away
All of the Comancheros ran away. The offender fled to a taxi in which he, Menzies, La Rosa and AL got away and went to the offender's parents' home. Some of the others caught another taxi but were arrested a short time later in Brighton. The remainder took a circuitous route, running through the car park and back to the cars parked outside the lower level of the terminal from where they made good their escape.
The offender was arrested by police and charged with affray on 6 April 2009. He was refused bail. A charge of riot was laid on 19 May 2009. He was released on bail the following day. The charge of murder was laid on 30 June 2009. He was refused bail and has remained in custody since.
Role of the offender
It is necessary for me to determine the factual basis for which the offender is to be sentenced.
The Crown contended at trial that the offender was guilty of murder on any of three bases. First, because he was directly involved in the fatal assault upon the deceased in that he struck him with a bollard. Secondly, he was a participant in a joint criminal enterprise to inflict grievous bodily harm upon members of the Hells Angels. Thirdly, he was a participant in a joint criminal enterprise to assault members of the Hells Angels, with foresight of the possibility that one or more participants would intentionally inflict grievous bodily harm.
All six of the Comanchero accused were charged with murder but the offender was the only one found guilty. The jury acquitted Eken, Potrus and Kisacanin of both murder and manslaughter but found them guilty of riot. They acquitted Menzies and Abounader of murder but could not agree upon a verdict on manslaughter. Menzies subsequently pleaded guilty to manslaughter and has been sentenced. Abounader is to face a retrial in September.
In the proceedings on sentence, the Crown Prosecutor submitted that I should find that the offender was directly involved in the fatal assault (CWS [7]). Mr Dunn QC submitted on behalf of the offender that I should not (DWS [52]), but no submission was made as to whether I should find that the offender's culpability was on the joint criminal enterprise or extended joint criminal enterprise basis.
The Comancheros were the aggressors
Before dealing specifically with the offender, it should be noted that I am satisfied that the Comancheros were the aggressors in what occurred at both locations in the airport terminal. The general thrust of the defence case at trial was that the Hells Angels were more responsible. Some of the submissions made in support of this proposition were put again on sentence.
A number of matters were said to support this. They included that the Zervas brothers travelled for about an hour from the Wollongong area in order to get to the airport. After the affray had occurred, Tom Baker at Gate 5 called Peter Martin who was in the departure hall, the inference being that he informed Mr Martin of the imminent emergence of the Comancheros into the departure hall. Anthony Zervas had armed himself with a pair of scissors. He brought a hooded jumper with him, on a warm day, which he put on, with the hood over his head, shortly before the confrontation in the departure hall occurred. During the crime scene examination, a knife and a set of knuckle-dusters were found on the terminal floor. It was submitted that these were more likely to have been brought by the Hells Angels who had not proceeded through any metal detecting screening point.
The reference to such matters was very selective. The Comancheros went to considerable lengths to attend the airport as well. Seven of them dropped whatever it was they were doing and gathered in two cars. This activity started about an hour and a half before QF 430 landed. They did not go directly to the airport but attended a meeting at Brighton first. The meeting was with Daux Ngakuru and Rui Antao, senior members (the commander and nominee boss respectively) of the Milperra chapter of the Comancheros.
It is correct that one Hells Angels member at Gate 5 called another Hells Angels member in the departure hall after the affray. But the same thing occurred in relation to the Comancheros between Aouli and Abounader. It may well be that Hells Angels members brought the knife and knuckle dusters that were dropped or discarded in the terminal but no-one saw them produced, let alone used. It was an undisputed fact that Fares Abounader brought a knife as well. It was a folding knife. He tried to use it, at least, but clumsily cut his own hand in the process. He dropped it into a drain outside the terminal when he fled.
The Comancheros greatly outnumbered their rivals; by 10 to 3 in the vicinity of Gate 5 and by 12 to 7 in the departure hall. The 8th Hells Angel, Mr Wainohu, arrived at the conclusion of the riot.
All 12 of the Comancheros were charged with criminal offences and all but one of them have either pleaded guilty or have been found guilty variously of affray, riot, manslaughter and, in the case of the present offender, murder. By contrast, only 3 of the 8 Hells Angels were charged. The jury acquitted David Padovan of all charges. Musa Ovalle and Peter Zervas pleaded guilty and were sentenced in the Local Court for affray.
I am satisfied from the facts I have recounted earlier that the Comancheros were the principal aggressors out of the two gangs. The Hells Angels probably came with the prospect of violence in mind, but it was a concern for violence that might be initiated by the Comancheros. Their president was outnumbered on the plane by 5 to 1.
The offender's involvement in the fatal assault
Turning to the role played by the offender in relation to the death of the deceased, a starting point is that it is common ground that the offender was in the immediate vicinity of the fatal assault when it occurred. The video footage recorded by a tourist, known in the trial as the "Deng footage", was relied upon by counsel for the offender as showing that the offender was not involved in the fatal assault but was in fact "running away towards the door" (T4348.21. See also T4365.22; T4399.25). I have considered the submissions made in support of this contention and do not accept it. In my view, the footage simply showed the offender in the vicinity of the fatal assault, moving away from it. Indeed, in the course of his submissions on sentence, Mr Dunn conceded that "moving" rather than "running" was a more apt term (T25.36)
The offender was moving away at a time when another man was raising his arms above his head and lowering them, accompanied by a loud banging noise. Witness descriptions were to the effect that a bollard was being held vertically and rammed downwards so that the base struck the deceased who was lying on his side on the ground. All that can be said about the appearance of that man in the footage is that he seemed to be quite tall and wore dark clothing on his upper body. Clearly, he was not the offender. I am satisfied that the man was one of the Comancheros, but, given the jury's verdicts, it would be inappropriate, and unnecessary in any event, to be more precise as to his identity.
The evidence of two elderly witnesses (T2025 - 2052) was relied upon by the Crown as supporting the proposition that the offender was involved in the assault upon the deceased. Mr and Mrs Ireland were aged in their 80's. They were seated on a bench inside the front glass wall of the terminal.
Mr Ireland saw various aspects of the riot and the fatal assault, although of course, not everything. His observations included seeing a young man lying on the ground about two metres away from where he was seated and slightly to his left. The young man was lying on his side and seemed to be unconscious. He also saw a man in white trousers and a white T-shirt standing to the side of the young man, facing away from Mr Ireland. This man was "tallish" and "well built". I interpolate that Mr Hawi was the only one of the participants dressed all in white and the physical description was apt.
This man picked up a metal stand (a bollard) and it appeared to Mr Ireland that he was swinging it across his body from right to left in a slow motion. He said that he could have been hitting the young man on the ground but he could not be certain of this because his vision of the upper body of the young man was obscured. The man swung the bollard in this fashion two or three times. Mr Ireland said that he was not a golfer but it appeared to be like a putting motion. Mr Ireland was continually turning to check on his wife who was seated beside him, to his right, so he obviously did not see everything. At one point, he turned back and the man in white was gone. The young man was lying on the floor and there was blood in front of him and he appeared unconscious.
Like her husband, Mrs Ireland did not purport to see everything that occurred during the course of the riot and the fatal assault. After giving a general description of the noise and the fighting, she said that she saw a big man dressed all in white standing with his legs apart a few feet away. He had his back to her. She saw movement of an arm but nothing more. He was leaning over as if he was doing something but she could not see properly. After this man moved away, she saw a young man lying on the floor with blood near him.
The airport duty manager spoke with Mr and Mrs Ireland shortly after the riot had ended. She asked them if they had seen anything and Mr Ireland replied that he remembered a person dressed all in white who had "arms as big as legs" (T2054). In her closing address to the jury, the Crown Prosecutor invited consideration of that evidence in conjunction with a photograph of the offender taken by police when he was arrested on 6 April 2009 (Exhibit GD). The description provided by Mr Ireland was a perfect match for the offender.
The Crown relied upon other evidence to support the proposition that the offender was involved in the fatal assault. It is unnecessary to refer to more. I am satisfied beyond reasonable doubt that the offender was in the immediate presence of the deceased when the assault occurred. I am not satisfied that he was the person who inflicted the blow, or blows, which caused the fractured skull. The person who did that was the person to whom I referred earlier who was tall and had dark clothing on his upper body. I am not satisfied beyond reasonable doubt that the offender inflicted any blows at all. I am satisfied that the person referred to in the evidence of Mr and Mrs Ireland was the offender but they did not actually see any blows make contact with the deceased.
I am satisfied beyond reasonable doubt that what occurred was this. One of the Comancheros rammed a bollard into the head of the deceased one or more times by raising and lowering it and striking him with the base of it. This caused the fractured skull. The offender contributed to the actions of this man by either joining in the assault by attempting, at least, to strike the deceased, or by simply being there when it was occurring. His presence would undoubtedly have had the effect of authorising and approving the actions of the other man who bludgeoned Anthony Zervas to death. Having seen the deceased being dealt with in that fashion, he turned and walked towards the exit, exchanged some threats with Peter Zervas, and then hurriedly left.
Seriousness of the offences
The affray at Gate 5 was relatively short-lived and none of those involved suffered serious injury. There was a large crowd of innocent bystanders of all ages ranging from children to the elderly. There were also a large number of combatants involved. I have observed in sentencing others that the evidence given by many of the witnesses left me with the clear impression that they were shocked and frightened that such violence could occur in such a place. These are prominent features of the offence and render it more serious than if it had been carried out elsewhere and otherwise.
I am satisfied that what started the affray was the offender punching Mr Wainohu. He was aware that his fellow Comanchero members would be likely to follow his lead, given his position of being the gang leader. For these reasons, his moral culpability for this offence is greater than for any of the others.
There is a wide range of circumstances in which murders are committed. This offence was, as the Crown Prosecutor submitted, a very serious case of murder. It was not contended that it fell within the worst-case category, or near it. The Crown submission was that it was "above mid-range" (T28.49) whereas Mr Dunn submitted it was of "midway seriousness" (T25.1).
I accept that the killing was not something that was planned. It was, however, the product of actions of the offender that created the high possibility of a very violent confrontation between members of two outlaw motorcycle gangs in a very public place.
There were a large number of eyewitnesses; members of the travelling public and airline and airport staff. They had the misfortune to witness what must have been a most terrifying incident in a place where they were entitled to expect safety and security.
The witness who was trying to protect her two small children said that she went into shock and felt like she could not breathe (T1288). Her husband described her as being "really distressed, yelling, crying" (T1314). Another witness said that the mother was "clearly ... very distressed and looked quite shocked and she burst into tears". This witness added," I suppose I became distressed myself" (T2513). An elderly woman said that she had to turn away because she "got too distressed because [she had] never experienced anything like this" (T1353). Mr and Mrs Ireland, seated so close to the fatal assault, were observed to have been in distress (T1676). One of the first police officers on the scene said that a number of the members of the public who were present "appeared distressed and upset" (T2518). It was necessary for Qantas to arrange for counsellors to be brought in (T1746).
The offender, and his Comanchero colleagues, displayed a flagrant disregard, not only for the law, but also for the many witnesses in whose memories of the incident will live long, notwithstanding that it took less than a minute.
The jury obviously rejected the offender's claim to self-defence, which was relied upon even though he denied involvement in the fatal assault. It was submitted on sentence that I should find that the offender was provoked, or acted under duress, because the deceased had attacked him. I reject that submission. In my view, the deceased was killed in an act of retribution because he had the temerity to attack the president of the Comancheros. Nobody was going to get away with doing that, least of all someone of the deceased's stature.
The Crown's position that the offence is not in, or near, the worst category of cases, is a realistic and responsible one. However, I have concluded that the offence is of considerable seriousness, above the middle of the range.
Victim impact
The deceased's mother, Ms Frederica Bromwich, prepared a victim impact statement. It was read to the Court on her behalf. The grief that Ms Bromwich has suffered over the loss of her son, "her angel" as she described him, is almost beyond comprehension. I reiterate that my sincere condolences go to Ms Bromwich and her family.
Subjective features
The evidence before me as to the offender's personal circumstances comprises criminal and custodial history printouts, a Corrective Services inmate profile, an affidavit of Ms Carolina Gonzales, a report by forensic psychologist Mr Tim Watson-Munro, medical reports concerning the offender's wife and mother and a number of testimonials.
The offender was born in Beirut, Lebanon in June 1980. He is now 31 years old and was 28 at the time of the offences.
He has a close relationship with his parents, brother and three sisters. The family moved to Australia in 1985 and the offender had an uneventful, if meagre childhood as the family settled in Sydney's southern suburbs.
After obtaining his School Certificate at the age of about 16, he left high school to attend TAFE and take an apprenticeship in his father's spray painting business where he worked for 3 to 4 years. He then bought a car detailing business with the family before establishing a refrigerated transport company in 2007 that he was running up until he went into custody. By all accounts, this was a successful business that also employed the offender's father. However, business has all but ceased operation since he was remanded in custody.
The offender does not have a history of drug or alcohol abuse. He appears to have led a settled life, characterised by self-employment and involvement with his family. He began his relationship with his wife, Carolina Gonzales, in 1995 while they were both still at school. In 2002 they were married and have two sons together aged 8 and 2½ years old. Their second son was born shortly after the offender was arrested for murder and remanded in custody. Prior to the offender's incarceration they were living together at their home at Bexley.
Mr Watson-Munro stated that the offender appears to have reflected on the impact that the affray and the death of Mr Zervas must have had on the general public. He has exhibited some regret referrable to the deceased and accepted responsibility for the affray, although he has not demonstrated remorse or accepted responsibility for the death of the deceased. Mr Watson-Munro also stated that the offender is suffering Chronic Anxiety Disorder referable to his incarceration, compounded by depression in connection with separation from his family.
This is the offender's first period of full-time imprisonment. His criminal history includes a finding of guilt for assault occasioning actual bodily harm in 1996 in the Children's Court when he was 16 years old. For that offence, he received a fine and a community service order. He has also been convicted for a number of driving offences, and received penalties which included a 3 month suspended sentence of imprisonment for driving while disqualified. He has also been fined for using offensive language and, most recently in 2005, was fined for possession of a prescribed restricted substance. Having regard to the nature of these offences and when they were committed, this is not a significant record of prior convictions.
The testimonials confirm that the offender enjoys the continued support of his wife, family and friends. He has earned the reputation of a man committed to his family and supportive of his friends. The authors speak of various other positive personal qualities as well. An additional feature that Mr Dunn emphasised in his submissions was that the offender has not been involved in any disciplinary incidents since he has been incarcerated.
The offender joined the Comancheros when he was 18 years old; his interest in motorcycles was the impetus for joining. By the age of 22 he was the national president; a position he held until his incarceration. He told Mr Watson-Munro that since going into custody he no longer holds office but remains a member.
Family hardship
It was submitted by Mr Dunn that the family has suffered considerable financial and health difficulties since the offender has been remanded in custody. In her affidavit, Ms Gonzales states that the incarceration and trial of her husband has impacted on the health of herself and her sons. Medical reports indicate that she is suffering ill health that is likely related to the stress caused by these events. This was supported by a number of the testimonials. I was also provided with evidence indicating that the offender's mother suffers a number of medical conditions.
In written submissions it was put that family hardship was a matter that I should take into account. However, Mr Dunn accepted in oral submissions that such hardship was not of an exceptional kind, as required by the authorities, which could be taken into account as a discrete consideration. It is a sad fact that it is often the case that an offender's family will endure the burden and distress of separation from a partner, parent, or breadwinner. Similarly, the submission that these matters would make being in custody more onerous for the offender cannot be accepted; they are the common experience of many offenders.
Character
It put in written submissions that I should take into account that the offender was of prior good character but that was abandoned in oral submissions by Mr Dunn (T32.7). That was a realistic concession. Having been the national president of an outlaw motorcycle gang, the offender is a person I would want to know a lot more about than is disclosed in the evidence before such a finding could be made in his favour.
Rehabilitation prospects and likelihood of re-offending
It was submitted that the offender has good prospects of rehabilitation and is unlikely to re-offend. While it is difficult to predict future behaviour, the support that the offender receives from his family, his strong record of employment, no history of drug or alcohol abuse, and absence of significant previous convictions all support the submission. His lack of genuine remorse and continued membership of the Comancheros are to the contrary. The most I can conclude is that the prospects of rehabilitation and not re-offending are reasonable.
Pre-sentence custody
It is agreed that the offender's sentence should be backdated to 16 May 2009 in order to take into account the period in which he has been in custody already.
It was submitted that I should take into account that the offender has been "in segregation" for a part of that time. Written submissions asserted that he was "in segregation" for 6 weeks and 2 days until he was released on bail and then for a further 6 months and 3 weeks after he was returned to custody; a total of about 8 to 9 months. The offender told Mr Watson-Munro that he had spent "9½ months in solitary confinement". He said that this involved "24 hours a day locked down in his cell".
Detective Walpole gave evidence about this and a document from Corrective Services NSW was tendered. The document indicates that the offender was classified as "Prisoner Restricted Non-Association" (PRNA) from 1 July until 5 November 2009 and then as "Prisoner Restricted Limited Association" (PRLA) from 6 November 2009 until 17 February 2010. Detective Walpole explained that PRNA status meant that the offender had no association with any other inmate. He was confined to a cell for 20 hours per day and had his own courtyard and cooking facilities. He also had access to library facilities and was able to receive visitors. PRLA did not mean "segregation" at all. It meant that the offender was able to associate with other prisoners who were not considered a threat to him; he had access to library, cooking and exercise facilities; and he was able to receive visitors. This evidence showed that what the offender told Mr Watson-Munro was untrue. I will take into account that he was subject to some restrictions in his custodial environment for the first 9 months but, in the scheme of things, it is of minimal significance.
It was also submitted that I should take into account the onerous conditions of the offender's custody during the trial. I assume the submission was intended to include the committal hearing as well. Combined, the committal and trial ran for about 9 months. The offender was required to rise early and was not returned to his cell until late. During the 5 weeks of the jury's deliberations he was required to remain in the court cells, on many days without being brought up to court at all. I have indicated in sentencing others that I did not think this was a major consideration but was something I would take into account. I will do so in the offender's case as well.
Willingness to plead guilty
I was informed that in April 2011, that is, just before the trial was due to commence, the offender offered to plead guilty to affray and manslaughter. The Crown rejected the offer. It seems reasonable to infer that the offer to plead to affray was contingent upon the Crown accepting the plea to manslaughter in lieu of murder. In the end, the offender pleaded not guilty to affray but was found guilty. I indicated at the sentence hearing that I would take this into account but it seems to be a matter of little significance. The offer to plead to manslaughter is of no significance.
Nature and relationship of the two sentences
I propose to accumulate the sentence for the murder upon the sentence for the affray in order to recognise that they were two distinct offences. However, because they were committed in a similar context and within a fairly short period of time, the degree of accumulation will be relatively modest.
I will impose a fixed term of imprisonment for the affray as there will be no utility in setting a non-parole period. I will be imposing a sentence that reflects the total term appropriate for that offence and not adopting what I regard as the anomalous approach of setting a term that reflects what would have been the non-parole period. That approach is anomalous because s 45 of the Crimes (Sentencing Procedure) Act authorises a court to decline to set a non-parole period, not to reduce the sentence.
Special circumstances
It was submitted that I should find that there are special circumstances warranting a reduction in the proportion of the sentence represented by the non-parole period. The circumstances referred to were "all of the mitigating factors referred to in [Mr Dunn's] written submissions". Specific reference was made to the nature of the offender's prior criminal record; that he has a wife and 2 children; he has strong family ties; he has conducted himself in an exemplary fashion in the prison environment; and the lengthy period of time in which he has been in custody since his arrest. I have taken all of these matters into account in determining the total term of the sentence. It would be double counting to take them into account again in reducing the non-parole period. The parole period that will be part of the sentence will be more than adequate to assist the offender's adjustment and rehabilitation within the community following release. I do not propose to make any adjustment because of the partial accumulation of sentences in order to maintain the usual statutory proportions in the aggregate sentence. Such an adjustment would be trivial.
Sentence
On each: Convicted.
Affray: Sentenced to a fixed term of imprisonment for 3 years 6 months. The sentence is to date from 16 May 2009 and expire on 15 November 2012.
Murder: Sentence to imprisonment comprising a non-parole period of 21 years and a balance of the term of the sentence of 7 years. The sentence is to date from 16 November 2009. The offender will be eligible for release on parole upon the expiration of the non-parole period on 15 November 2030. The total term will expire on 15 November 2037.
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Decision last updated: 10 April 2012
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