R v Kisacanin - [2012] NSWSC 91

Supreme Court

New South Wales

Medium Neutral Citation: R v Kisacanin [2012] NSWSC 91
Hearing dates: 17 February 2012
Decision date: 17 February 2012
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Affray: Sentenced to a fixed term of imprisonment for 2 years 2 months.
Riot: Sentenced to imprisonment with a non-parole period of 2 years 8 months and a balance of term of the sentence of 2 years 1 month.
The aggregate term is 5 years 3 months with a minimum period to be served of 3 years 2 months before parole eligibility.

Catchwords: CRIMINAL LAW - sentence - riot - affray - violent fight between rival bikie gang members at airport - serious examples of offences - conviction after protracted trial - acquittal for murder and manslaughter - offer 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 Eken; R v Potrus [2012] NSWSC 2
R v La Rosa [2011]) NSWSC 1394
R v Pirini [2011] NSWSC 1395
Category: Sentence
Parties: Regina
Zoran Kisacanin
Representation: Counsel:
Ms H Roberts (Crown)
Mr J Gordon (Offender)
Solicitors:
Solicitor for Public Prosecutions
Elie Rahme and Associates

File Number(s): 2009/127777
Publication restriction: Non-publication of anything that would identify witnesses known as SP and AL

Judgment

HIS HONOUR: The offender, Zoran Kisacanin, 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 found guilty of a separate charge of affray which was alleged to have occurred shortly before the riot. That is an offence against s 93C and the maximum penalty is imprisonment for 10 years.

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 each of the accused were aware that there was ongoing hostility between two rival motorcycle gangs, the Comancheros and the Hells Angels. 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.

Both the affray and 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, first at Gate 5 and then a short time later in the departure hall. Some of the participants were…

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 Kisacanin

Details

AGLC: R v Kisacanin [2012] NSWSC 91
Case: [2012] NSWSC 91
Decision Date: 17 February 2012

CaseChat Overview and Summary

The case before the court involved an altercation between rival bikie gang members at an airport, resulting in multiple injuries. The appellant, Kisacanin, was charged with various offences including riot, affray, and assault. The trial was lengthy, and after the proceedings, Kisacanin was convicted of the serious charges but acquitted of murder and manslaughter. The prosecution had previously rejected an offer to plead guilty, leading to a trial where Kisacanin was ultimately found guilty on several counts. The legal issues before the court focused on the appropriate sentencing for these serious offences, considering the violent nature of the incident, the protracted nature of the trial, and the relevance of deterrence and special circumstances in imposing the sentence.

The court had to consider the gravity of the offences, which involved a violent fight between members of rival bikie gangs resulting in significant injuries. The nature of the offences was exacerbated by the public disturbance caused at a busy airport, highlighting the need for a strong deterrent sentence. Additionally, the court needed to balance the need for deterrence with the possibility of special circumstances mitigating the sentence. The court also had to ensure parity with the sentences of Kisacanin's co-offenders, who were similarly convicted and sentenced for their roles in the incident.

In determining the sentence, the court emphasised the importance of deterrence, given the serious and violent nature of the offences. The court acknowledged the public disturbance and the potential for such incidents to escalate if not properly deterred. The court also considered the lengthy trial, which reflected the complexity and gravity of the case. While special circumstances were considered, the overall impact and seriousness of the offences led the court to impose a sentence that reflected the need for general deterrence. The court ensured that the sentence was proportionate and consistent with those of co-offenders, thereby maintaining parity in the judicial process.

The court's final orders confirmed the conviction and sentencing of Kisacanin, ensuring that the sentence reflected the seriousness of the offences, the need for deterrence, and the requirement for parity with co-offenders. The court's decision highlighted the importance of addressing such violent incidents with appropriate legal consequences to maintain public safety and order.

Orders