R v Menzies
[2012] NSWSC 158
•02 March 2012
Supreme Court
New South Wales
Medium Neutral Citation: R v Menzies [2012] NSWSC 158 Hearing dates: 10 February 2012 Decision date: 02 March 2012 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Affray: Sentenced to a fixed term of imprisonment for 3 years commencing 27 March 2009 and expiring 26 March 2012.
Manslaughter: Sentenced to imprisonment with a non-parole period of 3 years 8 months and a balance of the term of the sentence of 3 years 6 months. The sentence is to date from 27 September 2009. The offender will be eligible for release on parole upon the expiration of the non-parole period on 26 May 2013. The total term will expire on 26 November 2016.
Catchwords: CRIMINAL LAW - sentence - manslaughter and affray - melee between rival motorcycle club members at airport - deterrence and denunciation - conviction after trial for affray - subsequent plea of guilty to manslaughter - favourable subjective case - special circumstances Legislation Cited: Crimes Act 1900 Cases Cited: R v Eken; R v Potrus [2012] NSWSC
R v Kisacanin [2012] NSWSC 2
R v Pirini [2011] NSWSC 1395Category: Sentence Parties: Regina
Christian MenziesRepresentation: Counsel:
Ms H Roberts (Crown)
Mr J Stratton SC (Offender)
Solicitors:
Solicitor for Public Prosecutions
Hunter Flood Lawyers
File Number(s): 2009/151392 Publication restriction: Non-publication of anything that would identify witnesses known as SP and AL
Judgment
HIS HONOUR: The offender, Christian Menzies, was found by a jury to be guilty of affray. This is an offence contrary to s 93C of the Crimes Act 1900 for which the maximum penalty is imprisonment for 10 years. In relation to a separate incident, the offender was found not guilty of murder but the jury were unable to reach a unanimous or majority verdict in respect of manslaughter. The offender subsequently pleaded guilty to manslaughter. That is an offence against ss 18 & 24 for which the maximum penalty is imprisonment for 25 years.
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. It was on 2 December 2011 that the offender pleaded guilty to manslaughter.
On 10 February 2012 I heard and received evidence and submissions on sentence before standing the matter over until today.
Facts
The matter concerns events at the Qantas domestic terminal at Sydney airport on 22 March 2009 where there was violent conflict between members and associates of rival outlaw motorcycle gangs, the Hells Angels and the Comancheros. At the time of the offences the offender was a member of the Comancheros. For convenience, whether they were members, nominee members or associates of members, hereafter I will simply refer to people as being a member of one or the other gang.
The initial confrontation between the two groups giving rise to the charge of affray occurred at Gate 5 of the terminal. There was violence and threatened violence which constituted an affray. There was a second incident a short time later in the departure hall. A riot erupted that culminated with the tragic death of Mr Anthony Zervas, a brother of one of the Hells Angels.
A statement of agreed facts was tendered in the sentence proceedings and I draw the following from that document, supplemented with some evidence given in the trial.
The Comancheros were led by a national president, Mahmoud Hawi, who was described as having absolute power. The club had a hierarchical structure with strict and enforceable rules. These rules governed the behaviour of members and reinforced a strong culture of loyalty to the club and to one another; cowardice was not tolerated.
There had been ongoing hostility between the Comancheros and the Hells Angels for some time prior to 22 March 2009 and the offender was aware of this hostility.
The offender spent the weekend of 21-22 March 2009 in Melbourne with Hawi, Ishmail Eken, Pomare Pirini and Maher Aouli. On the Sunday they boarded Qantas flight QF430 at Melbourne airport at about midday to return to Sydney.
By chance, the president of the Hells Angels, Derek Wainohu, was on the same flight. It was this happenstance that was the catalyst for the events that took place at Sydney airport. Before the flight took off, Hawi exhibited animosity towards Wainohu and he directed Aouli to telephone club members in Sydney to have them attend the airport. Wainohu sent text messages to members of the Hells Angels for the same purpose. There was also evidence of telephone calls being made from Eken's telephone at this time. There was no suggestion that the offender was involved in making these arrangements.
Seven members of the Comancheros in Sydney proceeded with haste to the airport. They arrived at about 1.30pm and five of them (AL, SP, Tiago Costa, Zoran Kisacanin and Francesco La Rosa) proceeded through security screening to Gate 5 where passengers from QF430 were disembarking. The other two (Farres Abounader and Usama Potrus) remained in the non-secure departure hall.
Seven Hells Angels members also arrived at the airport. Two of them (Tom Baker and David Padovan) went to Gate 5. The other five (Musa Ovalle, Elias Khoury, Peter Martin, Peter Zervas and the deceased) remained in the departure hall.
The affray at Gate 5
After disembarking, Hawi, Pirini, Aouli, Eken and the offender were joined by the five Comancheros who had gone through to Gate 5. Wainohu was met by Padovan and Baker. In all, there were ten Comancheros and three Hells Angels in the vicinity of the gate.
Almost immediately after emerging into the terminal there was a confrontation between Hawi and Wainohu. There was a short verbal argument before Wainohu was punched, causing him to fall to the ground. The witnesses AL and SP, two of the Comanchero members who pleaded guilty and gave evidence for the Crown, both said that they saw the offender punch Wainohu twice at the start of the confrontation. However, AL agreed in cross-examination that he told police that he did not see the offender punch Wainohu; rather he was only told about it.
Members of the Comancheros were then observed to chase and assault Padovan. The affray escalated with him being violently punched and kicked. The fighting resulted in Padovan losing his shirt and at one stage he was on the ground being punched and kicked by numerous Comanchero members. There was no evidence that the offender was one of those who chased or assaulted Padovan.
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 understandably shocked, horrified and scared by what they witnessed.
In respect of this incident, the offender was found by the jury to be guilty of affray. The same verdicts were also returned in respect of Hawi and Kisacanin. Some of the others involved had earlier pleaded guilty to affray, they being SP, AL, Pirini, Aouli, La Rosa and Costa. Eken was acquitted. The only Hells Angel to be charged was Padovan and he was also acquitted. The submission by Mr Padovan's counsel in his closing address to the jury that "he was flogged" by the Comancheros was, in my view, apt.
Once the fighting had ceased, Padovan re-joined Wainohu and Baker. Hawi pointed and yelled threats in their direction, including, " You're fucking dead ". He was standing close to the other Comancheros, including the offender, when he made these threats.
The entire incident, from the initial confrontation until the uttering of the threats, took less than three minutes. None of the participants involved in the affray were seriously injured.
The group of ten Comanchero members, including the offender, left the Gate 5 area and walked as a group to the exit. When they emerged into the departure hall they were met by Abounader and Potrus who had been waiting in the vicinity of the escalators connecting the departure hall with the arrivals hall and baggage collection area on the level below.
The riot in the departure hall
Rather than going down the escalator to collect their baggage, the group of now 12 Comanchero members, including the offender, walked quickly in a direction which happened to be towards the five Hells Angels who were waiting behind the check-in counters in the departure hall. It was a disputed fact at the trial but I am satisfied, as I have indicated in other sentence proceedings ( R v Eken; R v Potrus [2012] NSWSC 91 at [20]; R v Kisacanin [2012] NSWSC 2 at [23]) that prior to the two groups coming together the Comancheros quickened their pace. The two groups came together at the rear of the check-in counters; the Comancheros having covered a distance of about 73 metres.
There was a short verbal argument between Hawi and Peter Zervas before a riot erupted. Witnesses gave various descriptions but generally described fighting and "punches flying everywhere". One witness 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 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. Eyewitnesses 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 used to guide queuing passengers, were taken up and used as weapons in the fighting. These bollards weigh about 12 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 ."
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 to get her out of the way. The fatal assault upon Anthony Zervas took place within a metre or two of an elderly couple who were seated on a bench waiting for a wheel chair to be brought to them.
I have indicated in other sentence proceedings that I am satisfied that the Comancheros were responsible for initiating the riot. There was a question as to why they proceeded along the back of the check-in counters in the direction of the waiting Hells Angels when they claimed not to know that they were there. The explanation that was advanced was incredible. But, even if they did not intend to attack the Hells Angels when they embarked upon the 73 metre walk from the exit doors to their location, I am satisfied that such an intention was formed as the two groups came together. The Comancheros quickened their pace and one of them, Kisacanin, ran around to approach from the other side of the check-in counters.
It was contended that the violence was initiated by Anthony Zervas attacking Hawi with a pair of scissors. I am satisfied that this was a pre-emptive strike made in the face of an imminent attack about to be made by the Comancheros upon the Hells Angels who were outnumbered by 12 to 5. The attack by Anthony Zervas was also foolish; it was David and Goliath in nature but Mr Zervas did not enjoy the advantage that it is said that David did.
Mr Zervas did manage to injure Hawi, not seriously, but he was quickly pursued to the glass wall at the front of the terminal where he went to the ground. He was bludgeoned by one or more of the bollards and was stabbed in the chest and abdomen.
He received three stab wounds, at least one inflicted by a pair of scissors. 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. He died at the scene.
Hawi was found by the jury to be guilty of his murder. All of the other Comancheros were acquitted of murder. Some were also acquitted of manslaughter, while the jury could not agree in respect of manslaughter for Abounader and the offender.
The Crown alleged at the trial that the offender was directly involved in the fatal assault upon the deceased. This was not accepted beyond reasonable doubt by the jury. The agreed basis for the offender's subsequent plea to manslaughter is that he was not directly involved in that assault but was complicit in the killing by virtue of being a participant in a joint criminal enterprise.
The offender gave evidence in the trial. He said that he was trying to get away from an attack by the Hells Angels behind the check-in counters. He proceeded through the counters to the front where "there was just a big scuffle". There were people fighting. He said, " I ran in, started throwing punches. I seen Pirini, Peter Zervas, Anthony. We all sort of fell over. I was copping punches, throwing punches ". He noticed Eken on the ground with a Hells Angels person on top of him, " just laying into him ". He grabbed that person around his neck and punched him in the head to try and get him off Eken. He succeeded in doing that but the man turned around; there was a skirmish which resulted in them falling to the ground where they had what he said was "a little scuffle". They both got up, shaped up to each other for a couple of seconds and then the offender "took off" (T3976 - 3977).
The offender's evidence must, of course, be understood in the context of him claiming that he was only acting in justifiable self-defence, a claim now disavowed by his plea of guilty.
The riot was relatively brief. It is likely that the physical fighting took less than a minute. Nevertheless, it is clear that many witnesses found the incident most distressing. 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). The elderly couple seated close to where the fatal assault took place 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). The offender said in a letter tendered in the sentence proceedings that he had " reflected on the trauma that the incident has caused to the people involved, their families and the community at large ".
The offender fled from the terminal at the same time as the other participants in the riot. He left in a taxi with Hawi, La Rosa and AL. His luggage was left unclaimed.
The offender surrendered himself to police on 27 March 2009 when he was arrested and charged with affray and he has been in custody since that date. He was charged with murder on 12 August 2009. It is agreed that his sentence should be backdated to 27 March 2009.
Outcomes in respect of others involved
There were 12 Comancheros and 8 Hells Angels present at the time of the offences. For convenience, their names and, where proceedings were taken against them, the outcomes are as follows.
Comancheros
Mahmoud Hawi
Found guilty of murder and affray. To be sentenced next month.
Zoran Kisacanin
Acquitted of murder and manslaughter. Found guilty of riot and affray. Sentenced to 5 years 3 months with a non-parole period of 3 years 2 months: R v Kisacanin [2012] NSWSC 91.
Farres Abounader
Acquitted of murder. Jury unable to agree on manslaughter. No verdict taken on riot. Retrial listed in September 2012.
Ishmail Eken
Acquitted of murder, manslaughter and affray (Gate 5). Found guilty of riot. Sentenced to 5 years with a non-parole period of 3 years: R v Eken; R v Potrus [2012] NSWSC 2.
Usama Potrus
Acquitted of murder and manslaughter. Found guilty of riot. Sentenced to 5 years with a non-parole period of 3 years: R v Eken; R v Potrus [2012] NSWSC 2.
Pomare Pirini
Pleaded guilty to manslaughter and affray (Gate 5). Total sentence of 6 years 6 months with non-parole period 3 years 6 months: R v Pirini [2011] NSWSC 1395.
Frank La Rosa
Pleaded guilty to manslaughter and affray (Gate 5). Total sentence of 7 years 1 month with non-parole period of 3 years 9 months: R v La Rosa [2011] NSWSC 1394.
Maher Aouli
Pleaded guilty to manslaughter and affray (Gate 5). Total sentence of 6 years 2 months with non-parole period 3 years 6 months: R v Aouli [2011] NSWSC 1393.
Tiago Costa
Pleaded guilty to manslaughter and affray (Gate 5). Total sentence of 7 years 1 month with non-parole period 3 years 9 months: R v Costa [2011] NSWSC 1392.
AL
Pleaded guilty to riot and affray (Gate 5). Sentenced in District Court to total of 3 years with non-parole period of 9 months. (55% reduction for pleas of guilty and assistance to authorities).
SP
Pleaded guilty to riot and affray (Gate 5). Sentenced in District Court to total of 3 years with non-parole period of 9 months. (55% reduction for pleas of guilty and assistance to authorities).
Hells Angels
Derek Wainohu
Not charged.
Tom Baker
Not charged.
Peter Martin
Not charged.
Elias Khoury
Not charged.
David Padovan
Acquitted of riot and affray (x2)(Gate 5 and departure hall).
Musa Ovalle
Pleaded guilty to affray (departure hall). Sentenced in Local Court to suspended sentence of imprisonment for 10 months.
Peter Zervas
Pleaded guilty to affray (departure hall). Sentenced in Local Court to 16 months with non-parole period of 8 months.
Anthony Zervas
Deceased.
Seriousness of the offences
It is important to stress that I am not sentencing the offender for directly causing the death of the deceased and I am not sentencing him for being involved in any joint enterprise that had the object of either killing or causing grievous bodily harm to anyone, or that he contemplated that such a consequence could occur. He is being sentenced for his participation in a joint criminal enterprise to commit an unlawful and dangerous act, namely the assault of one or more members of the Hells Angels, in circumstances which objectively carried with it an appreciable risk of serious injury being caused.
For the earlier affray, the offender is being sentenced for his participation with fellow Comanchero members in using or threatening unlawful violence towards one or more members of the Hells Angels in circumstances that would cause an ordinary person of reasonable fitness present at the scene to fear for his or her personal safety.
The affray was relatively short-lived and none of those involved suffered serious injury. There was no evidence that the offender was involved in the violent punching or kicking of David Padovan. However, the offence is still a serious one. The verdict of the jury indicates that it accepted the evidence that the offender did use or threaten unlawful violence. The evidence of SP (and AL with some qualification) was that he was one of the Comancheros who punched Wainohu and Mr Stratton SC accepted that the offender should be sentenced on the basis that the offender did so (T14.18 10.2.12).
There was a large crowd of innocent bystanders of all ages ranging from children to the elderly at Gate 5 during the affray. There were also a large number of combatants involved. The evidence given by many of the witnesses left me with the distinct 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.
The starting point in assessing the gravity of an offence of manslaughter is to recognise that it involves the unlawful taking of a human life. There are, however, a wide variety of ways in which the crime of manslaughter can be committed and there are an equally wide variety of ways in which an offender may be culpable.
I have earlier referred to the evidence given by the offender as to his involvement in the fighting. Mr Stratton submitted that I could sentence the offender on the basis that he found himself in the middle of a fight which he then joined (T 20.13 on 10.2.12). I cannot accept that submission.
The offender was part of the group of Comancheros that approached the Hells Angels. I have said in other sentence proceedings (e.g. R v Eken; R v Potrus , supra at [21] - [22]) that it seemed highly likely that the Comancheros walked deliberately towards the waiting Hells Angels. However, even if they had not previously been aware of their presence, they obviously became aware of them as they walked in their direction and they then hastened towards them. A violent fight erupted almost immediately the two groups came together and it is an agreed fact that the offender was part of the group of Comancheros moving through the check-in counters during the fight.
The incident in the departure hall occurred in a very short period of time and while it cannot be determined exactly when the joint criminal enterprise was formed, it was formed at least when the two groups came together. This must be understood in the context of the existing hostility between the two gangs and what had transpired only moments before at Gate 5. On his own evidence and on the agreed facts, the offender played an active role in the assault on the Hells Angels, and he was a significant participant in the fighting.
A matter that is particularly relevant in assessing the objective seriousness of the manslaughter is the location in which it occurred. The participants in the joint enterprise to fight were prepared to engage in wanton and significant violence regardless of the presence of many airline and airport staff and members of the public. An airport terminal is a place where people are entitled to expect safety and security. There were elderly people and small children present. A significant number of those who witnessed the events were utterly distressed and fearful. I have no doubt that the memory of it will live long in their minds. For example, I very much doubt that the mother who cowered in fear trying to protect her infant children will easily forget the experience.
Overall, I judge each of the offences as being of considerable seriousness. While the offender was not involved in planning or organising the attendance of other members at the airport, he was a willing participant in the violence that occurred, both at Gate 5 and in the departure hall.
Subjective features
The evidence before me as to the offender's personal circumstances comprised a handwritten letter and oral evidence by him, criminal and custodial history printouts, a report by Dr Bruce Westmore, forensic psychiatrist, a vocational education certificate and a number of testimonials.
The offender was born in June 1982 and was 26 years old at the time of the offences.
He has prior criminal convictions, including two incidents involving violence. Senior counsel for the offender conceded that these matters do not assist his client's case in the assessment of sentence. The first incident occurred when he was aged 21 and involved a confrontation between the offender and a hotel manager; he grabbed the manager's shirt and said "come outside and fight me". He then threw a metal bin which hit a female bar attendant and caused her to fall to the ground. The offender was convicted at Waverley Local Court on 10 March 2004 of assault occasioning actual bodily harm, common assault and failure to quit licensed premises. He received a good behaviour bond for the first and fines for the latter two offences.
The second incident occurred on 15 June 2006, on the eve of his 24 th birthday, and involved an attack by the offender and two others on two victims at a bus shelter and on a bus. This included the offender smashing a bourbon bottle over the head of one of the victims. In respect of this matter the offender was convicted on 9 July 2007 at the Downing Centre Local Court of maliciously inflicting grievous bodily harm and violent disorder. He was sentenced to 12 months imprisonment with a 6 month non-parole period and a 2 year good behaviour bond respectively.
These were offences involving violence in public places and one was committed in a group. Clearly, they deny to the offender any claim to the leniency that might be afforded to a person without such a record.
The offender is of Torres Straits Islander (on his father's side) and Aboriginal/Norfolk Island (on his mother's side) origin. His parents separated when he was 6 months old and he has not had contact with his father since he was an infant. He was raised in Sydney by his mother and maternal grandmother, and has a full brother and 3 half-siblings. He was happy as a child and was not exposed to any violence or other abuse. He has a good and continuing relationship with his family. His mother was present throughout the trial.
The offender has been in a relationship for about 5 years and his partner has remained with him while he has been in custody. He hopes to continue the relationship after his release.
The offender left school in Year 9 at the age of 15. He was more interested in sport than academic pursuits. He took up a bricklaying apprenticeship. He has since worked as a bricklayer, concreter and shotcreter, and has been in almost continuous employment until he went into custody. The offender previously undertook training at TAFE, and there is evidence that he has undertaken some further vocational training since he has been in custody.
The offender began to smoke cannabis in his early teen years but gave that up at the age of 18 and took to binge drinking of alcohol. Drinking alcohol was said to be a factor in the two incidents leading to his prior convictions for violent offences. He has also used other illicit drugs, including ecstasy, amphetamines and cocaine. The offender ceased taking alcohol and illicit drugs about six years ago, after he realised that using them began to affect his reliability at work.
The offender expressed in his letter that the absence of his father left him with feelings of abandonment. He became involved with the Comancheros when a friend introduced him to the club and the members became male role models for him. He wrote, " As a young man, attaching myself to a group of men made me feel important, accepted, strong and cared for." It is regrettable that he chose to attach himself to this group and he has now realised that " this association did not fill my void."
The offender left the Comancheros about two years ago while in custody. He was housed with other Comanchero members at Silverwater MRRC at the time. He has since been moved to the Long Bay Correctional Complex at his request so as to no longer be housed with club members. He has also voiced his intention to have two club related tattoos removed or covered over. These steps bode well for rehabilitation, and it will be important that he does not re-establish his ties with the club while in prison or after his release.
The offender has not been found guilty of any prison disciplinary offences since he has been in custody. While at Long Bay, he has been employed as the head sweeper of his wing, a position of some responsibility. He also stated in his letter that he has a positive rapport with the prison staff and his fellow inmates. A testimonial from a corrective services worker at Long Bay Hospital describes the offender as polite, courteous, compliant with routine and a hard worker.
The offender has the ongoing support of his mother and family. Upon his release, he hopes to undertake further study and states that he plans to take a youth workers course in order to work with young aboriginal men. He told Dr Westmore, however, that he hoped to do a riggers/dogman's course and thought he could get a job in the building industry. There was also the prospect of an uncle in Western Australia helping him to get a job in mining, although that would depend upon approval of the parole authorities.
The opinion of Dr Westmore was that if the offender remains drug and alcohol free and does not become affiliated with the Comancheros or any other similar organisation, " his risks of re-offending are probably low." He found that the support of the offender's family and partner, and his capacity to hold employment were factors that influenced his positive assessment.
That the offender has ongoing support of family and friends is confirmed by the testimonials. He has engendered respect as a hard-worker and capable in his chosen trade of bricklaying. The authors speak of a variety of other positive personal qualities as well.
In his letter, the offender has expressed his remorse for the events that occurred on 22 March 2009. He wrote that, " In particular, I would like to express my deep sympathy and regret to the family of Mr Zervas and I would like to tell them that I am sorry for the loss of their son, brother and loved one ." He also said, " I take full responsibility for my actions, and accept the consequences of my behaviour ." At sentence proceedings, the offender was asked by senior counsel whether the letter " truly reflects your feelings and thoughts about being involved in this offence?" to which the offender responded in the affirmative. The remorse felt by the offender is relayed in the testimonial of Ms Bridgette Loveday and I believe that it is genuine.
Specific mitigating features
Plea of guilty
As I noted earlier, on 2 December 2011 the offender pleaded guilty to manslaughter. The plea was entered subsequent to a jury at the first trial finding him to be guilty of affray, and finding him to be not guilty of murder. There was no offer by the offender to plead guilty to any offence prior to the first trial. However, it is acknowledged by the Crown that in any informal discussions between legal representatives, it was generally understood that as the Crown case was one of direct responsibility for murder, a plea to a lesser charge was unlikely to be accepted. Nevertheless, and regardless of whether the Crown would have accepted it, the fact remains that there was no plea to manslaughter at the trial and no prior offer to enter such a plea. I stress, however, that the offender should not be disadvantaged by the fact that he went to trial with the Crown alleging he was guilty of murder and the jury found that he was not.
There is, of course, no question of any reduction of the sentence in relation to the affray. The offender pleaded not guilty to that offence and was found to be guilty by the jury. However, it is necessary to determine what reduction of sentence there might be for the utilitarian benefit resulting from the offender's belated plea to manslaughter.
The plea was entered about 21/2 years after being charged, 14 months after committal for trial, a month after acquittal for murder, and about 9 months before the time a prospective retrial would have commenced (Abounader's retrial is listed in September 2012). A retrial would not have been as lengthy as the first trial but the Crown concedes it would still have been lengthy and complex. In these circumstances, notwithstanding the delay, the offender's plea does have significant utilitarian value.
The Crown submitted that any reduction should not be the same as the discount afforded to those persons who pleaded guilty (or offered to do so) prior to the first trial. On the other hand, Mr Stratton submitted that the reduction should be "close to that given to those who pleaded guilty before the trial". In oral submissions he accepted that the offender "would [not] get anywhere near the full discount" (i.e. 25 per cent).
I allowed a reduction of 20 per cent in the case of Pirini, 15 per cent in the case of La Rosa and 12.5 per cent in the cases of Aouli and Costa. In relation to Eken, Potrus and Kisacanin I allowed 20 per cent on account of their willingness about 6 months prior to trial to plead to either the same offence for which they were found guilty, or a greater offence.
The circumstances are unusual. Counsel were unable to refer me to any precedent that might guide the exercise of my discretion. I propose to allow a reduction of 15 per cent in respect of the sentence for manslaughter.
Onerous custodial conditions
Although Mr Stratton did not specifically address this point in submissions, he led evidence from the offender in the sentence proceedings directed to it (T6.1 - 6.6.17 10.2.12) and so I am prepared to assume that he intended a submission that is something I should take into account. It is something I have taken into account in sentencing Messrs Eken, Potrus and Kisacanin.
Normally it is not a mitigating factor that an offender has been required to attend court. However, in this case the trial was protracted, including the period during which the jury were deliberating. The committal hearing extended over some three months as well. These periods combined, in the order of 8 or 9 months, involved the offender being taken from his cell at an early hour; not returned until late in the day; being denied other than legal visits on those days and being denied recreational opportunities. Being required to remain in the court cells for much of each day while the jury were deliberating for over a month, often without being required to be brought up to the court room at all, is also a relevant matter. Whilst this is not a major factor in mitigation, it is something to which I have had regard.
Other mitigating factors
There are a number of other statutory mitigating factors that I must take into account. I cannot find that the offender has been of prior good character, given his admitted illicit drug use and prior offences of violence.
It was submitted that the offender has good prospects of rehabilitation. I am satisfied that this is so, provided he remains drug and alcohol free, as he has been for the past 6 years or so, and does not involve himself with the Comancheros or other similar organisations. The fact that the offender has a close and supportive family and a strong work ethic supports this finding as well.
Usually when an offender goes to trial with a denial of responsibility for a crime it is difficult to find that he or she is remorseful. However, in this case, I am satisfied that the offender is genuinely remorseful. This is evident not only from his letter but also from what he has said to others. The letter was tendered during the course of his evidence in the sentence proceedings and he was not challenged in relation to its contents.
Totality
In other sentence proceedings in this matter I have explained why there should be a partial accumulation of sentences. It was conceded by Mr Stratton that a similar degree of partial accumulation was appropriate in this case. I will adopt the same approach.
I propose to impose a fixed term of imprisonment for the affray offence as there would be no utility in setting a non-parole period. I refer to, but do not repeat, what I said about fixed terms of imprisonment in sentencing Pirini: R v Pirini , supra, [2011] NSWSC 1395 at [73]. The fixed term I propose will be the equivalent of the full term of the sentence, not what would have been a non-parole period.
Deterrence
An important matter that must be factored into the assessment of the appropriate sentence is deterrence. Personal deterrence cannot be ignored, even with the finding I have made about the offender's rehabilitation prospects.
More important, however, is general deterrence; that is, the deterrence of others. It was brazen and arrogant for the offender and his Comanchero colleagues to further their ongoing dispute with the Hells Angels by carrying out a violent attack in such a public place as an airport terminal.
As I have said in other sentence proceedings, it is a regrettable and distressing fact that wars between rival bikie gangs occur from time to time. Those who perpetrate serious violence or property damage in pursuit of such wars must know that significant punishment awaits them upon detection. However, when the violence spills out into the public arena, as exemplified by this case, a clear message must be sent that it will be met by punishment that is severe.
Parity
Mr Sttratton conceded that the offender's criminal record diminshed the application of strict parity, but submitted that in "all other respects the offender is in a very similar situation to the other offenders who have been sentenced" and that the principles of parity should apply.
I do not intend to recite in any detail how sentences were assessed for each of the co-offenders. His Hounour Judge Charteris in the District Court sentenced the offenders AL and SP and I have elsewhere referred to the manner in which his Honour assessed their sentences: see, for example, R v Pirini , supra, at [66]. I have previously sentenced Messrs Costa, Aouli, La Rosa, Pirini, Potrus, Eken and Kisicanin.
The offender's involvement in the incidents at both Gate 5 and the departure hall was greater than of those already sentenced for the same offences. It was only minimally more in relation to the affray, but more than minimally in relation to the manslaughter. Pirini played a small and reactive role in the fighting in the departure hall. La Rosa and Costa accepted that they were parties to a joint criminal enterprise but they were not active at all; rather, they were sentenced on the basis that they were willing to assist if required. Aouli was sentenced for being a participant in a joint criminal enterprise to intimidate, contemplating the possibility that an unlawful and dangerous assault might be committed. He did not, however, play any active role.
Unlike Aouli and the present offender, Pirini, La Rosa and Costa had either no, or no significant, record of previous convictions. La Rosa and Aouli were on conditional liberty at the time of the offences, whereas the offender, Pirini and Costa were not. Otherwise, generally favourable findings were made in terms of the subjective cases in respect of each of Pirini, La Rosa, Aouli and Costa. There was some differentiation in the reduction of their sentences on account of their pleas of guilty.
The foregoing factors, although not exhaustive, are some of the more significant similarities and differences that I have taken into account in an attempt to arrive at a sentence for the present offender which bears appropriate relativity to the sentences imposed upon the others.
Special circumstances
It was submitted by Mr Stratton that there should be a finding of special circumstances. I accept that submission. It would be in the interests of both the offender and the community that there be a longer than usual period of parole supervision. The purpose of this is to ensure, as far as possible, that after the offender's release he re-establishes a stable life in the community, including settling back into employment, and importantly, remains free of alcohol and ilicit drugs. It is also important to ensure he avoids any further involvement with outlaw motorcycle gangs and their members. I expect that will be a matter of particular interest to the Parole Authority.
Sentence
Convicted.
Affray: Sentenced to a fixed term of imprisonment for 3 years commencing 27 March 2009 and expiring 26 March 2012.
Manslaughter: Sentenced to imprisonment with a non-parole period of 3 years 8 months and a balance of the term of the sentence of 3 years 6 months. The sentence is to date from 27 September 2009. The offender will be eligible for release on parole upon the expiration of the non-parole period on 26 May 2013. The total term will expire on 26 November 2016.
That is an aggregate term of imprisonment of 7 years 8 months with a minimum period to be served of 4 years 2 months before parole eligibility.
The sentence for the offence of manslaughter has been reduced from one of 8 years 6 months to one of 7 years 2 months on account of the offender's plea of guilty.
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Decision last updated: 02 March 2012
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