R v Aouli

Supreme Court of NSW|2011-06-24|Before: Hulme J

Judgment 1HIS HONOUR: On 9 May 2011 the offender, Maher Aouli, 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. 2On 24 June 2011 I heard and received evidence and submissions on sentence before standing the matter over until today.

Facts 3The 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. 4A statement of agreed facts was tendered before me. I draw what follows from that document. 5The offender was a full member of the Comanchero. He was aware, in a general sense, that there had been hostility and enmity between members of the Comanchero and the Hells Angels for some time prior to 22 March 2009. 6There was a hierarchical structure within the Comanchero motorcycle club. At the time of the incident on 22 March 2009, Mahmoud Hawi was the national president; Daux Ngakuru was the "commander"; Farres Abounader was the "road captain"; Tiago Costa was the secretary; Francesco La Rosa was the treasurer; Rui Antao was the "nominee boss"; and Herb Laupepa was the "sergeant at arms". 7Full members of the club, as the offender was, were required to obey instructions from the commander and the national president. The rules of the club included not speaking with police, not talking about club business outside the club, leaving mobile phones outside meetings, and obeying orders. Club rules were reduced to writing. Rule number 1, for instance, was, "Any display of cowardice will not be tolerated" . 8On 22 March 2009 the offender travelled on a Qantas flight from Melbourne to Sydney with fellow Comanchero members Mahmoud Hawi, Canan (aka Ishmail) Eken, Christian Menzies and Pomare Pirini. 9By chance, Derek Wainohu, the president of the Hells Angels, happened to be on the same flight and was seen by Comanchero members. It was this happenstance that triggered the events that took place shortly after the flight landed in Sydney. Before the flight took off in Melbourne, Mr Hawi directed the offender to call other Comanchero members to attend Sydney airport. Telephone records show that he called Mr Abounader, the road captain. Calls were also made by Mr Eken. Mr Wainohu sent text messages to Hells Angels members in order to have them attend the airport. 10Passengers on the flight observed animosity from the Comanchero members towards Mr Wainohu before the flight took off. Most of this emanated from Mr Hawi. There is no evidence that the offender was involved but he was aware of it. 11Seven Comanchero members arrived at the airport. Five of them went through to Gate 5 whilst two of them, Mr Abounader and Usama Potrus, remained outside the secure area. 12Seven Hells Angels members or associates, including the deceased, also arrived. Two of them, Tom Baker and David Padovan, went to Gate 5. The other five remained in the non-secure area. 13The offender telephoned Mr Abounader once more. This was at 1.30pm, shortly after the flight landed.

The Gate 5 affray 14The five Comanchero members who had been on the flight disembarked at Gate 5 and met up with the five who had proceeded through security screening. Similarly, Mr Wainohu met up with Mr Baker and Mr Padovan. In all, there were 10 Comanchero members and 3 Hells Angels members in the terminal in the vicinity of Gate 5. 15Mr Hawi confronted Mr Wainohu. There was a short verbal argument before Mr Wainohu was punched, causing him to fall to the ground. Members of the Comanchero were then observed to chase and assault Mr Padovan. The affray escalated into violent punching and kicking of Mr Padovan by Comanchero members. The other two Hells Angels, Messrs Wainohu and Baker, were not seen to engage in any violence. The fighting resulted in Mr Padovan losing his shirt. At one stage he was on the ground being punched and kicked by numerous Comanchero members. The offender was involved as part of the moving group chasing Mr Padovan at Gate 5, but there is no evidence that he punched or kicked Mr Padovan whilst he was on the ground. 16None of the participants in the affray received serious injuries. There were, however, a large number of members of the public at Gate 5 at the time, including children and elderly people. The offender accepts that those who witnessed the affray were put in fear by his actions and those of his fellow Comanchero members. 17A small part of the affray was captured by a CCTV camera inside a bookshop. It shows the group of Comanchero moving past the shop as they were assaulting Mr Padovan. The offender is seen in this footage but he was some distance behind the pursuing pack and he had a bag slung over his shoulder. 18Mr Padovan re-joined Mr Wainohu and Mr Baker at the conclusion of the fighting. Mr Hawi pointed and yelled out threats, including the words, "You're fucking dead" . 19This incident, from the initial confrontation between Messrs Hawi and Wainohu until the utterance of threats by Mr Hawi, occurred within less than three minutes. 20The 10 Comanchero members then walked towards the exit and as they did so the offender once again called Mr Abounader. When the group emerged into the departure hall they met up with Messrs Abounader and Potrus who had been waiting in the vicinity of the escalators leading down to the baggage claim level.

The confrontation in the check-in area 21The offender veered to the right towards the escalators but almost immediately rejoined the group as the now 12 Comanchero members moved quickly towards a group of 5 Hells Angels members and associates, including the deceased, who were waiting in the departure hall in the vicinity of the furthest of 20 economy class check-in counters. CCTV footage shows that when the offender rejoined the group after his brief movement towards the escalators, he was at the front of the group as it proceeded into the departure hall towards the Hells Angels members. 22The Comanchero members passed 14 of the check-in counters and covered a distance of about 73 metres to the point where they met up with the deceased and the Hells Angels members. 23There was a short verbal argument before the fighting commenced. Witnesses described the two sides fighting each other and "punches flying everywhere". There is conflicting evidence as to precisely how the fighting started. The witnesses SP and AL, two of the Comanchero members who have pleaded guilty and have agreed to give evidence for the Crown, gave evidence at the committal hearing that the fight started when the deceased either punched or stabbed at Mr Hawi. However, none of the eyewitnesses saw the deceased with a weapon. 24It is common ground that the question of precisely how the fighting started does not need to be resolved. The offender has acknowledged by his plea that as part of his common purpose with others to intimidate one or more of the Hells Angels, he contemplated the possibility that an unlawful and dangerous act would be committed and that such an act carried with it an appreciable risk of serious injury. 25After the fight erupted behind the check-in counters it continued with the participants moving to the area in front of the counters. The offender came through but towards the rear of the moving group of Comanchero members and the Crown accepts that he was not fighting. 26Eyewitness descriptions include that the fighting was between two groups with more men in one group than the other. There are references to it being an "all in brawl" with "everybody punching". Bollards used to guide the queuing of passengers in front of the check-in counters were taken up and used as weapons. These bollards weigh about 12 kilograms each. There were a number of fights taking place simultaneously, the attack upon the deceased being one of them. 27The offender accepts that the deceased died as a result of the actions of others in the fighting, but he has not nominated any of the individual participants who caused the death. The Crown contends that it was Messrs Hawi, Menzies and Abounader who assaulted the deceased towards the end of the fighting. Eyewitnesses vary in their accounts from there being anywhere between two to seven persons involved in the fatal assault. 28CCTV footage from a camera focused just outside the area of the main action shows the offender stepping back out of the area where the brawl was occurring and then running back in to it. It shows that he still had a bag slung over his shoulder. 29The Crown accepts that there is no evidence that the offender committed any physical acts during the brawl. He was present whilst it was going on, but the Crown accepts that he was not willing to physically assist in it. 30The fighting was relatively brief. It was over in no more than two minutes. 31Mr Zervas died from the combined effects of blunt force injuries to the head and stab wounds to the chest and abdomen. There were three stab wounds, at least one inflicted by a pair of scissors. They caused injuries to the liver, the stomach and one of the lungs and caused significant internal bleeding. The head injuries were severe. They included extensive fracturing at the base of the skull, bleeding over the surface of the brain and bruising of the brain tissue. 32The offender fled in a taxi with Messrs Eken, Kisacanin and Pirini. He made calls to Mr Abounader, SP and Mr La Rosa before the taxi was stopped by police and the occupants were arrested at Brighton-Le-Sands a short time later. 33The offender was taken to Mascot police station. He declined to be interviewed. He was charged with riot and affray. A charge of murder was preferred on 11 August 2009. 34The offender has been at liberty for 5 days since his initial arrest and it is agreed that if I am to back-date sentences, then that should be to 27 March 2009. Alternatively, if I am to give credit for pre-sentence custody by reducing sentences, the allowance should be for 841 days.

Seriousness of the offences 35I have previously sentenced Messrs Pirini and La Rosa for affray and manslaughter. I said when I sentenced them, and reiterate now, that it is important to stress that I am not sentencing the offender for directly causing the death of the deceased. I am not sentencing him for his participation in a joint enterprise that had as its object the doing of an act with the intention of killing or inflicting grievous bodily harm. I am not sentencing him for his participation in a joint enterprise with the contemplation that the commission of murder was a possible occurrence. 36For the affray, the offender is being sentenced for his threatening unlawful violence towards one or more members or associates of the Hells Angels by being part of the moving group of Comanchero members in that incident. This affray was committed in front of members of the general public in circumstances that caused those members of reasonable firmness to fear for their personal safety. 37It is significant that all that is necessary for the offence to be committed is that the conduct "would cause a person of reasonable firmness present at the scene to fear for his or her personal safety" and that it is not necessary that such a person actually be, or be likely to be, present: s 93C(4) Crimes Act . Further, the offence may be committed in private as well as in public places: s 93C(5). In this case, of course, the offence was committed in a very public place and there were a significant number of people present. Further, it is an agreed fact that the affray did in fact cause those of them who were of reasonable firmness to fear for their personal safety. 38In the light of submissions that were made on the offender's behalf by Ms Francis of counsel, it is important to also recognise that the agreed facts are that the offender threatened unlawful violence "along with his fellow Comanchero members". In the light of this, an assessment of the objective seriousness of the offence cannot be made solely upon an examination of the actual role played by the offender. The "conduct of them taken together ... must be considered": s 93C(2). 39I acknowledge that the affray was relatively short-lived and that the offender's role was less than that of other participants. He did not engage in any of the physical violence. These features were at the heart of the submission by Ms Francis that if this was the only offence for which he was to be dealt with, it would not attract a full-time custodial sentence. 40I do not accept that submission. The offence involved the offender engaging in conduct with nine of his Comanchero associates that struck fear in a significant number of members of the public in a place where they were entitled to feel safe and secure. It was an agreed fact that there were a large number of persons in the vicinity and that they included children and elderly people. It cannot be ignored, as well, that the offender played a role in having further Comanchero members attend the airport, adding numbers to the five who were on the flight. The matter is of quite some seriousness. 41The starting point in assessing the gravity of an offence of manslaughter is always 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. 42For the manslaughter, the offender is being sentenced for his participation in a joint criminal enterprise to assault, by way of intimidation, one or more members or associates of the Hells Angels, a rival motorcycle gang. He contemplated the possibility that an unlawful and dangerous act, namely a physical assault, would take place. It is accepted that this was an assault that carried with it an appreciable risk of serious injury. Obviously, the physical assault that he contemplated might possibly occur was not something trivial, given that the offender acknowledges that a reasonable person in his position would have appreciated that serious injury was at risk. 43Ms Francis submitted that the level of risk associated with the contemplated unlawful and dangerous act was a relevant matter in the assessment of objective seriousness. I accept that if an offender contemplates that in the course of a joint criminal enterprise an act will be committed which carries a very high risk of serious injury, the offence would be more serious for that reason. In the present case, the offender contemplated the possibility of an assault being committed by at least one of his Comanchero associates. A number of these men were very large and powerfully built. The contemplated assault was upon one or more members of an opposing motorcycle club with which there was a known history of hostility. The offender had just witnessed the national president of his club punch the president of the Hells Angels, causing him to fall to the ground. He had then witnessed his companions punching and kicking another Hells Angels member after that man was assaulted and then chased, caught and brought to the ground. In short, the level of risk associated with the contemplated unlawful and dangerous act was far from insignificant. 44The incident in the departure hall occurred in a very short period of time. I accept that, at least in so far as this offender was concerned, it was not an event which was anticipated. Indeed, the fact that he first headed towards the escalators down to the baggage carousals when he emerged from the secure area indicates that he quite likely thought that the affray was the end of the confrontation with the Hells Angels. However, it is notable that he did not waste any time rejoining his companions when the five Hells Angels waiting further inside the departure hall were seen. The offender was amongst the Comanchero group of 12, at the front at least initially, when they quickly advanced over a considerable distance towards their clearly outnumbered rivals. 45As with the affray, the location in which the second incident occurred is highly relevant. The level of violence being perpetrated in amongst airport staff and the travelling public was of a very high order. The offender did not desist when he obviously saw this. Although he did not participate in it, and the Crown accepts that he was not willing to assist, the CCTV footage shows him momentarily stepping away from the activity and then running back towards it. He then fled the scene in a taxi with three of his companions. It is right that the offender should feel sorry for not only the deceased's family but also for "all of those men, women and children" who were present. In his affidavit he advances an apology to these people, acknowledging that, aside from the deceased's family, "other people's lives have been changed as a result of having witnessed the events". As he rightly put it, "No-one ... should have been subjected to the violence that took place on that day". 46The role that the offender played was less than others. Its seriousness relative to the roles played by the others whom I have sentenced will be considered later. However, my conclusion is that the offence remains a serious one.

Denunciation, punishment and deterrence 47It is appropriate that I reiterate some other things I said in the course of sentencing Mr Pirini and Mr La Rosa. Members of the community have an entitlement to feel safe and secure in public places. The selfish and mindless arrogance of those who perpetrate extreme levels of violence for their own ends with complete disregard for others warrants the strongest condemnation. This includes those who are prepared to associate themselves with such violence, even though not directly participating, 48It is necessary in the assessment of sentence to denounce the offender's conduct. It must be made clear to him, and others who may contemplate acting in such a way, that such conduct will be met with condign punishment. Aggressive and violent conduct between rival gang members in public places will not be tolerated, the more so where there is an appreciable risk of somebody suffering serious injury. That risk, in what occurred in this case in the departure hall, was high indeed. The offender must be punished and made accountable for his part in this tragic affair.

Subjective features 49The offender was born in 1981. He was aged 28 at the time of the offences and is 30 now. 50He has committed criminal offences in the past. At the Downing Centre Local Court on 18 June 2008 he was convicted and fined for an offence of knowingly making a statement that was misleading in a material particular. On the same occasion he was placed on a recognizance but not convicted for an offence of importing prohibited imports. He said in his evidence that this involved steroids for personal use. 51Of more significance, on 12 November 2009 he received an 8 month suspended sentence of imprisonment in the District Court for an offence of assault occasioning actual bodily harm in company. He was initially charged with aggravated robbery in respect of that matter and he was on bail for it at the time of the incident at the airport on 22 March 2009. That is a significant aggravating factor that must be taken into account. I was informed that at the time of the commission of that offence the offender was on bail in respect of charges of affray and assault with intent to participate in the criminal activity of a criminal group. Those charges were subsequently dismissed. I do not regard this feature as being of any additional significance. 52The agreed facts in the District Court matter were tendered before me by the Crown. They indicate that there was a business dispute concerning the supply of motor vehicle tyres between a wholesaler and two retailers. The offender was one of five men who went to see the wholesaler one day. The wholesaler was punched and kicked. A sixth man arrived and the assault continued for two to three hours. The offender did not participate in the physical violence but it was an agreed fact that he shared a common purpose with the other offenders and he was ready to assist in the assault if required. The offender agreed in his evidence that one of the two retailers involved in the dispute was a man who was an associate of the Comanchero. He claimed, however, that this had nothing to do with his own involvement in the matter. I did not find his evidence on the topic to be very convincing. 53Evidence was tendered before me by Ms Francis as to the offender's personal circumstances. It comprised affidavits by himself and three of his sisters, a handwritten letter by himself, various testimonials and a report by Ms Anna Robilliard, forensic psychologist. 54The offender was born in Lebanon. He came to Australia with his family in 1985. He is the eldest of seven children. His youngest sibling is a 16 year old school student. The other siblings are aged 20 to 27 and are all in employment, as is his father. His mother is said to suffer from a variety of physical and mental ailments. Only his eldest brother lives independently; the offender and the rest of his brothers and sisters still reside at home at Casula in Housing Department accommodation. By all accounts the family is stable and close knit and they are deeply saddened by the offender's incarceration. Celebrations of significant family events have either been deferred or have not taken place because of his absence. 55As the eldest sibling the offender accepted considerable responsibility for his brothers and sisters as they were growing up, particularly with his father working and his mother not having a driver's licence. He contributed towards many household expenses as well. Affidavits by three of his sisters have a common theme of describing him as a role model. 56The offender completed the Higher School Certificate in 1998. He worked part-time in his last two years of school. He has since been actively involved with employment, often holding a full-time job as well as a second job. He has worked in security, as a cleaner, domestic cable installer and as an electrician. He lost his security licence following his conviction in November 2009. He has work available to him upon his release. He aspires to start his own business doing painting and electrical maintenance work. 57He purchased an investment property at Bankstown in about 2002. The property is leased and this has enabled him, with some assistance from his family, to meet the mortgage repayments since being in custody. 58Certificates attesting to charitable donations to Muslim Aid Australia were annexed to the offender's affidavit. He said that he donated $100 per month for projects such as the provision of clean water to impoverished people in Cambodia. 59The offender has had an interest in bikes since he was young. He bought his first road bike in about 2002 so that he could go riding with his friend, Farres Abounader, whom he has known since primary school. It was Mr Abounader who introduced the offender to Mahmoud Hawi and other Comanchero members at a wedding in either 2005 or 2006. The offender joined the Comanchero in 2006 after friends that he used to ride with had joined. He described life with the Comanchero thus: When I joined the Comanchero I would often go riding with the boys and we would get together at BBQ's, birthday parties and children's birthday parties. It was like a big family. 60In a curious juxtaposition with that rather benign description of the Comanchero, the offender also said that being a member made him feel " tough ". 61The offender was romantically involved with Mr Hawi's sister-in-law for a number of years and they became engaged about a year before his arrest. The relationship, however, ceased about 6 months ago. He said that she never approved of the Comanchero. 62The offender also ceased his relationship with the Comanchero in recent times. There have been no recriminations. He said, " I've spoken about it to the boys from the club and they said it's all good" . 63Various expressions of remorse are to be found in the evidence. I earlier referred to the offender's regret for the fact that so many people had to witness the violence. I accept that the offender regrets his involvement in what happened and that he has an appreciation and empathy for the grief undoubtedly experienced by the deceased's mother and family. 64The offender also gave evidence about his desire to change. Forsaking his membership of the Comanchero is a start. He said in his affidavit that he has " drawn a line in the sand and want to put the past behind me and move forward in my life for the better ". Having spent two years in custody, he says that he realises that he needs to change in order to enjoy what life has to offer. He is fortunate in this respect to have a strongly supportive family. 65Ms Robilliard assessed the offender's physical and mental health as stable and reasonable in the circumstances. She detected that he was highly anxious and had symptoms of depression. I accept that, in part, this is a result of his realisation of his role in such horrifyingly violent events that occurred at the airport and his remorse for the death of the deceased. I suspect that this will resolve to some extent once he is sentenced and his future is clearer. There are no substance abuse issues and, although Ms Robilliard suggests that the offender would benefit from committing to psychotherapy, it does not appear to be strongly indicated. 66The testimonials that were tendered contain expressions of various good qualities that the offender exhibits. They include that he is kind, caring, polite, well-spoken, honest, trustworthy, reliable, hardworking and highly respected. I accept that, aside from his previous offences and his involvement with the Comanchero, he has generally been a person of good character.

Specific mitigating features 67As I indicated earlier, the offender entered pleas of guilty to affray, and manslaughter as an alternative to murder, on 9 May 2011. In his affidavit he said that he instructed his solicitor that he would plead guilty to affray late last year. It seems safe to assume that such a plea was not acceptable to the Crown. He gave evidence in the proceedings on sentence to the effect that he readily agreed to plead guilty to manslaughter as soon as his counsel informed him of the factual basis that the Crown was prepared to accept. I am aware that negotiations between the Crown and the offender's representatives took place following my sentencing of Mr Pirini on 18 March 2011. 68Ms Francis submitted on behalf of the offender that there should be a reduction of his sentence of 15 to 20 per cent to reflect the utilitarian benefit of the pleas. The Crown Prosecutor submitted that the reduction should be in the range of 10 to 12.5 per cent. 69The pleas were entered on the trial date, although the offender's intentions were known before that date. Ordinarily, such a late plea of guilty would attract a reduction of 10 per cent. The present case has the additional element of the prospective trial being lengthy and, by virtue of the number of accused and the number of prosecution witnesses, rather complex. I propose to allow for a reduction of 12.5 per cent. 70There are a number of other statutory mitigating factors that I must take into account. I am satisfied that the offender is unlikely to re-offend and that he has good prospects of rehabilitation. Renouncement of his membership of the Comanchero, his close and supportive family and his strong work ethic are particular features I have taken into account in respect of those findings. 71I am also satisfied that the offender is genuinely remorseful. This is evident not only from what he has said to the court directly on the subject but also from what he is reported to have said to others.

Sentencing of co-offenders 72AL, a Comanchero member, pleaded guilty in the Local Court to charges of affray and riot. He was sentenced by Charteris DCJ on 17 June 2010 to a total term of 3 years with a non-parole period of 9 months. The starting point for the affray sentence was 3 years and for the riot sentence was 6 years. These were reduced by 55 per cent on account of the pleas of guilty and assistance to authorities. 73SP, another Comanchero member, also pleaded guilty in the Local Court to charges of affray and riot and was sentenced by Charteris DCJ on 18 June 2010. The sentence imposed was in identical terms to that imposed upon AL except for the commencement date. His Honour allowed a reduction of 55 percent in his case as well. 74It is unnecessary to refer to the sentencing of AL and SP in any further detail. I undertook that task in sentencing Mr Pirini on 18 March 2011 and, whilst the sentences imposed upon AL and SP are not irrelevant, it is the sentences imposed upon Mr Pirini and Mr La Rosa that are more directly relevant. 75Mr Pirini had been committed for trial for the same charges as the offender but entered pleas of guilty to manslaughter and affray on arraignment on 16 December 2010. The facts as to his offending included that he had been a passenger on the flight from Melbourne with his four Comanchero colleagues. He was aware of some aggression being shown on the plane towards Mr Wainohu, but not the extent of it. He was involved in "scuffles" during the Gate 5 affray. The only physical activity in which he was involved during the subsequent riot in the check-in area was to confront, but not land a blow upon, a Hells Angels member who was menacing him with a bollard. 76Mr Pirini was aged 21 at the time of the offences. There were no previous convictions of significance. He had only been a member of the Comanchero motorcycle club for about a year. There was no suggestion that he was involved in any criminal activity. He regarded it as "just a bunch of boys who rode around on bikes, all hanging out together". He had a good employment history and support from his partner and extended family. Since going into custody he had returned to his Christian faith and renounced his Comanchero membership. There was evidence that he was a loyal, hardworking, quiet, respectful, humble, gentle and well-mannered young man. 77I specifically found in Mr Pirini's favour that he was of prior good character and had good prospects of rehabilitation. I was particularly well-satisfied that he was deeply and genuinely remorseful. I found special circumstances for reducing the proportion of the sentence represented by the non-parole period. 78Mr Pirini received a fixed term of 2 years 2 months for the affray (starting point 2 years 8 months) and a sentence of 6 years with a non-parole period of 3 years for the manslaughter (starting point 7 years 6 months). The sentences were partially accumulated so that the total term was 6 years 6 months with a non-parole component of 3 years 6 months. 79Mr La Rosa was also committed for trial for the same charges as the offender but entered pleas of guilty to manslaughter and affray on 8 April 2011. Mr La Rosa was one of the Comanchero members who heeded the call to come to the airport. He, like the present offender, was involved in the affray but was not directly involved in any of the fighting. The agreed facts in his case in respect of the manslaughter were to the effect that he was a party to a joint enterprise to assault Hells Angels members. He did not commit any physical acts of violence but he was willing to assist if required. 80Mr La Rosa was aged 37 at the time of the offences. He had no previous convictions of significance. However, he was on bail in respect of a driving offence, a matter which I took into account as an aggravating feature. Mr La Rosa joined the Comanchero in about 2003 and became the treasurer. There was no evidence that he had been involved in any criminal activity in that context. He had a history of regular employment. He was generous in respect of charitable donations. Mr Tim Watson-Munro, forensic psychologist, assessed Mr La Rosa as having long-standing issues with depression, anxiety and low self esteem. These issues stemmed from his suffering from morbid obesity. Mr Watson-Munro's opinion was that he required treatment in respect of his significant level of unresolved psychological distress. 81I found in Mr La Rosa's favour that he had no significant record of previous convictions and was of prior good character. I was satisfied that he was unlikely to re-offend and had good prospects of rehabilitation. He was genuinely remorseful. For the utilitarian value of his pleas of guilty I reduced the sentence I otherwise would have imposed by 15 per cent. 82Mr La Rosa received a fixed term of imprisonment of 2 years 4 months for the affray (starting point of 2 years 9 months) and a sentence of 6 years 7 months (starting point 7 years 9 months) for the manslaughter. The sentences were partially accumulated so that the total term was 7 years 1 month with a non-parole component of 3 years 9 months. 83I do not intend to isolate each and every one of the similarities and differences between the present case and those concerning Mr Pirini and Mr La Rosa. Three matters do, however, stand out. 84The first is that the offender was involved in the activity that brought about the attendance at the airport of greater numbers of Comancheros. He was directed by Mr Hawi to "call other Comanchero to attend" the airport. He called Mr Abounader before the flight took off in Melbourne. By way of contrast, Mr Pirini was not involved in summoning reinforcements. He was generally aware of the hostility directed towards Mr Wainohu, but seems to have been somewhat ambivalent about it, did not participate in it, and slept for most of the flight. 85The second matter is that in the affray, unlike Mr Pirini, but like Mr La Rosa, the offender was part of the moving group of Comanchero participants but was not otherwise responsible for any physical act of violence. This is not a point of very great distinction. The seriousness of the offence also lies in a number of other factors which I have discussed earlier and, although Mr Pirini was physically involved, it was to a relatively minor extent ("scuffles"). 86The third matter is more significant. In respect of the manslaughter, Mr Pirini and Mr La Rosa were parties to a joint enterprise to physically assault Hells Angels members. Mr Pirini was directly involved in a fight with one Hells Angels member, albeit in a defensive way and he did not land a blow. He was otherwise willing to assist as required. Mr La Rosa did not physically participate at all, but he, too, was willing to assist as required. The agreed facts in respect of the present offender, on the other hand, are that he was a participant in a joint enterprise to assault by way of intimidation, not physically, and he was not willing to assist in any physical assault. 87I do not regard the seriousness of the affray insofar as it concerns the offender as being appreciably different from the assessment I made with respect to Mr Pirini and Mr La Rosa. I do, however, find that the seriousness of the manslaughter offence for him is less than it was in respect of those two. The Crown accepted that this was so. 88The subjective circumstances of the three cases have a number of distinguishing features. It is impossible to isolate and evaluate the relative weight to be assigned to every such feature but there are some which bear mention. In the offender's case, he has a criminal record of greater significance than the other two. The aggravating factor of being on conditional liberty should be given a little more weight in his case than in Mr La Rosa's case on account of the matter for which he was on bail being one involving violence. There is also the different assessments of the utilitarian value of the pleas of guilty to be taken into account. 89Balancing all of the relevant considerations, I have concluded that the starting point for the sentence to be imposed for the offence of affray should be similar to that which applied in the cases of Mr Pirini and Mr La Rosa. The starting point for the sentence for manslaughter should be less.

Other sentencing considerations 90It is necessary to determine sentences for the individual offences and then to determine whether they should be served concurrently or otherwise. That determination is made with the principle of totality in mind. 91The Crown Prosecutor submitted that there should be some level of partial accumulation of the sentences because there were two distinct offences committed some distance apart. The affray at Gate 5 had ended but instead of the Comanchero members leaving it at that and proceeding downstairs to the arrivals hall to collect baggage and leave the terminal, they proceeded through to the departure hall to take on the Hells Angels in greater numbers. Indeed, the offender was initially intent on proceeding downstairs but quickly re-joined his companions. There is no suggestion that he did so anything other than willingly. 92Ms Francis, on the other hand, submitted that there should be complete concurrency. This submission was based upon her contention that the affray offence was insufficiently serious to warrant any discrete custodial imposition. I do not accept that this is the case. The factors I identified earlier in my description of the seriousness of the matter are such that if this offence stood alone it would indeed warrant a full-time custodial sentence. For the reasons identified by the Crown Prosecutor I propose to order that there be some partial accumulation along the lines of that which was ordered in the cases of Mr Pirini and Mr La Rosa. 93Ms Francis referred to some other first instance sentencing judgments and made submissions as to those features within them that were comparable, and those which could be contrasted, with the present case. With respect, I found them to be of little assistance. The objective facts, and the personal circumstances of the offender, in each of the cases were not identical and they brought a judge to exercise the sentencing discretion in a particular way. The present case is quite unique, involving as it does two very violent confrontations between rival outlaw motorcycle gang members in the midst of large numbers of members of the public, including children and the elderly, in an environment normally regarded as safe and secure. 94I do not propose to set a non-parole period for the affray sentence as there would be no utility in doing so. My view as to the correct construction of s 45 of the Crimes (Sentencing Procedure) Act 1999 is to be found in the other sentencing judgments and does not need to be repeated. 95Ms Francis submitted that there should be a finding of special circumstances warranting a reduction of the proportion of the sentence represented by the non-parole period. I accept that submission. The offender has a sound history of employment and his personal and family lifestyle (putting aside his Comanchero involvement) has been quite stable. Exposure to a significant period of full-time imprisonment carries a risk that there may be difficulties in resuming such a life. In this regard I am particularly mindful of the need for him to establish social contacts that do not include his former Comanchero associates. 96Finally, it was submitted that I should take into account the time to date that the offender has been in custody and reduce the sentence I impose by an equivalent period. It was submitted that this would produce a sentence that would carry with it an entitlement to parole release, as opposed to an eligibility that would need to be considered by the Parole Authority. Whilst I acknowledge that I have a discretion in this respect, I do not propose to follow such a course. In my view, the consideration that there should be a sentence which openly and transparently demonstrates the seriousness with which the offences are regarded, balanced appropriately against all of the other circumstances of the case, should prevail.

SENTENCE On each: Convicted Affray: Sentenced to a fixed term of imprisonment of 2 years 5 months. The sentence is to date from 27 March 2009 and expire on 26 August 2011. Manslaughter: Sentenced to imprisonment comprising a non-parole period of 3 years and a balance of the term of the sentence of 2 years 8 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 September 2012. The total term will expire on 26 May 2015. That is a total sentence of 6 years 2 months with a non-parole period of 3 years 6 months. The sentence of 2 years 5 months for the affray, but for the offender's plea of guilty, would have been one of 2 years 9 months. The sentence of 5 years 8 months for the manslaughter, but for the offender's plea of guilty, would have been one of 6 years 6 months.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2011

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