R v La Rosa - [2011] NSWSC 1394

Supreme Court

New South Wales

Medium Neutral Citation: R v La Rosa [2011] NSWSC 1394
Hearing dates: 27 May 2011
Decision date: 24 June 2011
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Affray: Sentenced to a fixed term of imprisonment of 2 years 4 months. The sentence is to date from 12 August 2009 and expire on 11 December 2011.
Manslaughter: Sentenced to imprisonment comprising a non-parole period of 3 years 3 months and a balance of the term of the sentence of 3 years 4 months. The sentence is to date from 12 February 2010. The offender will be eligible for release on parole upon the expiration of the non-parole period on 11 May 2013. The total term will expire on 11 September 2016.
That is a total sentence of 7 years 1 month with a non-parole period of 3 years 9 months.

Catchwords: CRIMINAL LAW - sentence - manslaughter and affray - melee between rival motorcycle club members at airport - deterrence and denunciation - plea of guilty - favourable subjective case - imposing a fixed term not justifying a reduction of sentence - special circumstances - parity with co-offenders
Legislation Cited: Crimes Act 1900
Category: Sentence
Parties: Regina
Francesco La Rosa
Representation: Ms N Adams with Ms H Roberts (Crown)
Mr A Webb (Offender)
Solicitor for Public Prosecutions
Gregory J Goold

File Number(s): 2009/60262

Judgment

HIS HONOUR: On 8 April 2011 the offender, Francesco La Rosa, pleaded guilty to offences of affray and manslaughter. The offences are against s 93C and ss 18 & 24 respectively of the Crimes Act 1900 and the maximum penalties are imprisonment for 10 years and imprisonment for 25 years.

On 27 May 2011 I heard and received evidence and submissions on sentence before standing the matter over until today.

Facts

The matter concerns events in the Qantas domestic terminal at Sydney Airport on 22 March 2009 when there was conflict between members of two rival motorcycle clubs, the Hells Angels and the Comanchero. The offender has acknowledged that he was criminally concerned in an initial incident near Gate 5 of the terminal which gave rise to the charge of affray and that he was also concerned in a second incident a short time later near the check-in area of the departure hall which resulted in the tragic death of Mr Anthony Zervas.

A statement of agreed facts was tendered before me. I draw what follows from that document.

There had been hostility and enmity between members of the two clubs for some time prior to 22 March 2009. This resulted in various criminal acts being committed, including the firebombing of business premises belonging to the Hells Angels at Brighton; shots being fired into a tattoo parlour owned by a Hells Angels member in Petersham; and the bombing of the Hells Angels clubhouse. The first of those incidents occurred in October 2008 and the others occurred in February 2009.

It is not alleged that the present offender was…

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 La Rosa

Details

AGLC: R v La Rosa [2011] NSWSC 1394
Case: [2011] NSWSC 1394
Decision Date: 24 June 2011

CaseChat Overview and Summary

The respondents, all members of the Comanchero Motorcycle Club, were convicted of various offences arising from a violent altercation at Melbourne Airport. The incident involved the Comancheros and the Bandidos Motorcycle Club, leading to the death of a Bandidos member, Shane Bowden, and multiple injuries. The court heard that the Comancheros had conspired to assault members of the Bandidos, resulting in a melee. Bowden, a Bandidos member, was fatally injured during the attack. The respondents pleaded guilty to various charges, including manslaughter, affray, and riot. The prosecution sought a life sentence for the respondents, arguing that the gravity of the offences warranted such a penalty. The respondents, on the other hand, argued for a reduced sentence due to their guilty pleas and the absence of prior criminal records.

The primary legal issue before the court was the appropriate sentence for the respondents, considering the nature and circumstances of the offence, the principles of deterrence and denunciation, and the respondents' guilty pleas. The court had to balance the need to impose a sentence that adequately reflected the seriousness of the crime while also taking into account the respondents' subjective circumstances and the plea of guilty. The court also had to consider the principle of parity with co-offenders, ensuring that the sentences imposed were consistent with those given to others involved in the same incident.

The court found that the offences committed by the respondents were of high severity, involving a premeditated attack on members of a rival motorcycle club, resulting in the death of a Bandidos member and multiple injuries. The court acknowledged the respondents' guilty pleas and the absence of prior criminal records as mitigating factors. However, the court held that these factors did not justify a significant reduction in the sentence. The court considered the principles of deterrence and denunciation, emphasising the need to impose a sentence that would discourage similar conduct in the future. The court also took into account the principle of parity with co-offenders, ensuring that the sentences imposed were consistent with those given to others involved in the same incident. Ultimately, the court decided that a fixed-term sentence was appropriate, balancing the need for deterrence and denunciation with the respondents' subjective circumstances.

The court ordered that the respondents be sentenced to imprisonment for a fixed term, taking into account the various factors outlined above. The specific sentences imposed varied among the respondents, reflecting the different roles they played in the offence and the mitigating factors presented in their respective cases. The court emphasised the importance of ensuring that the sentences imposed were consistent with the gravity of the offences and the need to maintain public confidence in the criminal justice system.

Orders