R v Costa

Supreme Court of NSW|2011-07-15|Before: Hulme J

Judgment 1HIS HONOUR: On 9 May 2011 the offender, Tiago Costa, 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 15 July 2011 I heard and received evidence and submissions on sentence before standing the matter over until today.

Facts 3A statement of agreed facts was tendered in the sentence proceedings and I draw the following from that document.

Background 7At the time of the incident, the Comanchero motorcycle club had a hierarchical structure. It had a president, Mr Mahmoud (Mick) Hawi; a "commander", Mr Daux Ngakuru; a "road captain", Mr Farres Abounader; a treasurer, Mr Francesco La Rosa; a "nominee boss", Mr Rui Antao; and a "sergeant at arms", Mr Herb Laupepa. The offender was the secretary. He was responsible for the collection of membership fees. 8Hostility and enmity existed between the Comanchero and Hells Angels which had been given expression by earlier acts of malicious damage between the two clubs. The offender acknowledges that the events of 22 March 2009 occurred in this context. As the secretary, he was generally aware of the hostility between the two entities.

The precipitating event 9Five members of the Comanchero flew to Sydney from Melbourne. They were Mahmoud Hawi, Canan (aka Ishmail) Eken, Christian Menzies, Maher Aouli and Pomare Pirini. When they boarded the flight there was a chance sighting of Derek Wainohu, the president of the Hells Angels. Mr Hawi and the other Comanchero members were observed to exhibit animosity towards Mr Wainohu before the flight took off. 10Mr Hawi directed Mr Aouli to contact Comanchero members in Sydney in order to have them attend the airport. Mr Wainohu also made contact with Hells Angels members in order for them to come to the airport. Seven Comanchero members attended the airport as a result of the call from Mr Aouli. A car driven by Mr Abounader conveyed the offender and Mr La Rosa while a car driven by Usama Potrus conveyed Zoran Kisacanin, SP and AL (the latter two being Comanchero members who subsequently became Crown witnesses). The two cars stopped at Brighton on the way to the airport where Messrs Potrus and Abounader spoke with Messrs Ngakuru and Laupepa. 11The two cars were parked illegally at the airport. It is not a part of the agreed facts, but I observe that this is consistent with there being a perception of urgency for the occupants to meet their colleagues arriving from Melbourne. 12Five of the Comanchero members proceeded through security screening to Gate 5. Messrs Abounader and Potrus remained outside, but near where arriving passengers emerge from the "sterile" area. 13Seven members of the Hells Angels (or "associates" in the case of the deceased and Musa Ovalle) also came to the airport. Two of them, Tom Baker and David Padovan, went through to Gate 5 while the others, Mr Ovalle, Anthony and Peter Zervas, Elias Khoury and Peter Martin, remained outside of the sterile area.

The Gate 5 affray 14The five Comanchero members disembarked at Gate 5 and met their five fellow members nearby. Mr Wainohu, similarly, met the two members of his gang. At this point there were ten Comanchero members and three Hells Angels members. 15Mr Hawi confronted Mr Wainohu. After a short argument, Mr Wainohu was punched and he fell to the ground. Comanchero members then chased and assaulted Mr Padovan. There was violent punching and kicking of Mr Padovan by the Comanchero members. The other Hells Angels, Messrs Wainohu and Baker, did not engage in the 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. 16There were a large number of people at Gate 5 at the time of this affray. There were passengers disembarking from the flight and others waiting to board the departing flight. They included children and elderly people. The offender acknowledges that these people were put in fear by his actions, and the actions of his fellow Comanchero members. 17The offender was involved in "scuffles" in the course of these events, but the Crown accepts that there is no evidence that he either punched or kicked Mr Padovan whilst Mr Padovan was on the ground. 18None of the participants received any serious injuries in the course of the affray.

Threats at the conclusion of the Gate 5 affray 19Mr Padovan rejoined Messrs Wainohu and Baker when the fighting had ceased. Mr Hawi pointed and yelled out threats towards the Hells Angels, including, "You're fucking dead" . The other Comanchero members present at Gate 5 were with him when he uttered these threats. 20The Comanchero members then proceeded towards the exit and emerged into the departure hall of the terminal where they met up with Messrs Abounader and Potrus. 21The entire incident in the vicinity of Gate 5 took place in less than three minutes.

Confrontation in the departure hall 22Rather than going down the escalators immediately outside the exit into the terminal which proceed down to the baggage collection area, the now 12 Comanchero members moved quickly towards the 5 Hells Angels who were waiting in the check-in area. They covered a distance of about 73 metres to the point where the 2 groups met up. The offender acknowledges that as this occurred, he contemplated the possibility of a physical assault upon one or more of the Hells Angels. 23There was a short argument before a fight commenced. SP and AL have claimed that as the two groups approached, one of the Comancheros called out, "He's got a gun" and that some of the Comanchero, including the offender, dropped to the ground. No gun was ever found and none of the innocent eyewitnesses described men dropping to the ground. 24SP and AL have also claimed that the deceased stabbed at Mr Hawi at the commencement of the fighting. None of the innocent eyewitnesses saw the deceased with a weapon. Some of them did, however, describe the deceased being chased after the fighting had commenced and there were descriptions of a fight breaking out with both sides fighting each other and "punches flying everywhere". 25It is agreed between the parties that precisely how the fight started does not need to be resolved. The offender is to be dealt with upon the agreed basis that he was part of a joint criminal enterprise to assault one or more of the Hells Angels and that, although he did not actually participate in the fighting, he was willing to assist if required. 26The fight erupted behind the check-in counters and continued as the participants moved to the front of the terminal. Eyewitness descriptions are of a fight between two sides with one side outnumbering the other. There are references to an "all in brawl" and "everybody" punching. 27The offender was a part of the moving group of Comanchero members coming through from behind to in front of the check-in counters. After the two groups had moved to the front of the counters there were a number of fights occurring simultaneously. The assault upon the deceased was one of these fights. 28Some of the participants picked up bollards, the metal poles which weigh about 12 kilograms that were used in the check-in queues. There were anywhere between two and five of these bollards being used as weapons by the men involved in the brawl. I note that the Crown does not assert that the offender was involved in the brawl in this way notwithstanding that his fingerprints were found on a bollard that was recovered from the scene. 29The Crown contends that Messrs Menzies, Hawi and Abounader, at least, assaulted the deceased towards the end of the brawl. There is evidence which suggests that there was anywhere between two to seven men assaulting him. It is agreed, however, that the offender was not one of them. 30The fighting in the check-in area took place in the presence of a large number of people, including children and elderly people. Many witnesses commented upon the extreme viciousness of the fighting. Some specifically commented about feeling threatened and terrified. One said, "Whilst the fight was occurring I was shocked. The punches were thrown with force and the attack was vicious" . Another said, "During the incident I was scared and sickened as to what had happened. These people looked like animals going at it" . 31The deceased died from the combined effects of blunt force injuries to the head and stab wounds to the chest and abdomen. 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. The stab wounds injured the right lung, liver and stomach and caused significant internal bleeding. 32The fighting in this area of the terminal is agreed to have lasted no more than two minutes. The offender fled at the same time as SP, Mr Abounader and Mr Potrus. After running towards taxis that were immediately outside the terminal, they turned back and ran through the carpark and left the area in one of the two cars that had been driven to the airport. The offender was not arrested until 3 July 2009. He was charged on that date with riot and affray. On 11 August 2009 he was charged with murder. 33The offender gave evidence in the sentence proceedings and it included some further information as to his involvement. 34He said that he had been at a child's birthday party when he was contacted by another Comanchero member and told that he, and others, were required to go to the airport. He said that he had an expectation that they may be confronted by Hells Angels members. He thought that "it was possible that there might be some sort of assault, some sort of trouble", but that this was unlikely due to the location. The reason he thought it was unlikely was because it was an airport with "lots of people, cameras, police, witnesses" and it was daylight. 35After the affray at Gate 5, he and his fellow Comanchero members walked out to the departure hall where they saw further members of the Hells Angels. He accepted that as they approached these men their actions were threatening and that the possibility of a violent physical confrontation was enhanced. 36In relation to the offender's fingerprints being found on a bollard, he could not offer a definitive explanation but suspected that he touched one as the fighting proceeded through from the back of the check-in counters and into the area where passengers queued in front. He said that he recalled stumbling and also that bollards were falling around him.

Seriousness of the offences 37I have previously sentenced a number of other offenders in relation to this matter. Mr Pickin, counsel for the present offender, conceded that the assessment of the seriousness of the offences I made when sentencing Pomare Pirini was open to me to make in this case. I am satisfied that is so because the roles and culpability of Mr Pirini and the offender are, in the respects that are material, virtually indistinguishable. As a result, I will largely be reiterating what I said when sentencing Mr Pirini. 38I 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. 39For the affray, the offender is being sentenced for his participation with fellow Comanchero members in using unlawful violence towards one or more members of the Hells Angels in circumstances that would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. 40For the manslaughter, the offender 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 in which there was an appreciable risk of serious injury being occasioned to a person. 41As for the affray, it was relatively short-lived and the offender's role was less than that of other participants. Nevertheless, it was an offence of some seriousness. It involved a considerable number of combatants. The location where it occurred is relevant. So too is the number and nature of innocent people who were present. These are prominent features of this offence and render it considerably more serious than if it had occurred elsewhere and otherwise. 42The 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 is an equally wide variety of ways in which an offender may be culpable. 43The present case is one of considerable seriousness. The offender accepts that the fighting that occurred in the departure hall carried with it an appreciable risk of somebody suffering serious injury. That risk was not only of injury to participants in the fighting but to innocent bystanders who included children and the elderly. The offender was part of a large group of men who outnumbered their opponents. The statement of agreed facts includes that witnesses felt threatened and terrified. Comments were made about the extreme viciousness of the fighting. 44It must be acknowledged that the offender's role was, relatively speaking, minor. It is not alleged that he was directly involved in any physical violence himself. He was not armed and, unlike some others, he did not take up any object to use as a weapon. He was not directly involved in the attack upon the deceased. Acknowledging each of those matters, however, does not mean that his offence was anything other than a serious one. The absence of those factors simply means that his culpability is less than that of others. 45There was a level of planning and organisation that attended the incidents. Clearly, a confrontation was contemplated at the time phone calls were made to summon fellow gang members to attend at the airport. The offender conceded quite candidly that when he went to the airport with Messrs Abounader and La Rosa he realised the possibility that there might be a confrontation, although he thought it unlikely due to the nature of the location. It was further conceded, again quite candidly, that after the Gate 5 affray the prospect of further violence as the Comanchero members advanced upon the Hells Angels in the departure hall was a greater likelihood. 46Each of the offences are of considerable seriousness. The offender was willingly involved in the manner described in the agreed facts. However, in assessing the appropriate sentences to impose I must also bear in mind that the role played by the offender was significantly less than that of other participants.

Denunciation, punishment and deterrence 47An observation I have made in sentencing others bears repeating. 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. 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 simply 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 aged 29 at the time of the offences and is now aged 32. 50He has no previous convictions, a matter that stands to his credit in the assessment of sentence. 51Mr Pickin tendered a variety of documentary material. It comprised affidavits by the offender, his wife and one of his brothers; a number of testimonials; reports by the offender's wife's general practitioner, Dr Peter Parras; and a report by Mr Tim Watson-Munro, forensic psychologist. The offender gave evidence and during the course of it Mr Pickin tendered a letter that the offender had written. The Crown tendered a Pre Sentence Report prepared by an officer of the Probation and Parole Service. The salient points I derive from this material include what follows. 52The offender was born in Portugal and came to Australia with his family at the age of 6. He is the eldest of three boys. He was educated to Higher School Certificate level and then completed an apprenticeship with John Newell Mazda as a motor mechanic. 53He married his wife in 2004. They purchased a house in Carlton. It was around this time that he resigned from his position with John Newell Mazda and took up work in the construction industry. He explained that this was because it was better paying work and he had a wife, a mortgage and a child on the way. Since he has been in custody, he has been employed as a storeman and later as a cleaner. It would seem that he has a good work ethic. 54The couple's first son was born in January 2005. Another son was born in March 2006. They sold the house in Carlton and bought a larger home in Panania. 55It was around this time that the offender bought an old Harley Davidson that required restoration. He had been friends with Mr Abounader, Mr Laupepa, and Mr Aouli. They used to ride bikes together. The offender was introduced to Mr Hawi through Mr Abounader. He was invited to join a ride on Fathers' Day in 2006 and became acquainted with other Comanchero members. He was invited to attend the clubhouse. It was not long after this, in about late 2006, that he was invited to join the Comanchero. 56In relation to his membership of the Comanchero, the offender said that prior to 2007 his life revolved around his family but then his priorities became confused. He could not see it at the time, even though his wife and one of his brothers spoke to him about it. He said that he spent all of his spare time riding his bike rather than caring for his family and spending time with his very young children. He was attracted to the Comanchero because of his love for bikes and the riding. Once he was in the club he enjoyed "the lifestyle, the parties and all that sort of thing" . He was "pretty much living the single life with the boys" and "would go out partying, drinking and taking drugs" . He also said that he was attracted by the respect that members showed each other and the bond that they had together. To the author of the Pre Sentence Report, he described this as "a fake lifestyle" . 57In cross-examination, the offender denied seeing any criminal activity in the club, although he acknowledged, as do the agreed facts, that he was aware of ongoing hostility between the Comanchero and Hells Angels clubs and that he knew that this was manifested in the malicious damage of the opposing club's property. 58The offender said that soon after he went into custody he made the decision to leave the Comanchero. However he deferred doing so until the time he decided to plead guilty. In the interim, he felt safer being in gaol in the company of fellow Comanchero members. He has told Messrs Hawi, Abounader, Aouli and La Rosa of his decision to leave the club and, apparently, there have been no recriminations. 59The offender claimed that he had recommitted himself to his family and vows that upon his release he will devote himself to them and eschew the life that he led in the period prior to his arrest. He has anguished over missing milestones in his children's lives. He regrets the distress that his behaviour, and his incarceration, have caused to his wife and his family. He is fortunate they have maintained regular contact with him and it bodes well for his rehabilitation that he has their support. 60I am satisfied that the offender is genuinely remorseful. What he said in his evidence, his letter and his affidavit, as well as what he is reported to have said to others, makes it evident that he has empathy for the family of the deceased and is able to appreciate the grief and anguish that they have had to suffer. 61I am also satisfied that the offender appreciates the terrifying experience of the airport staff and members of the public who were in the Qantas terminal at the time of the events and who witnessed such horrific acts of violence. He has reflected upon "how that day has changed many people's lives" . 62The affidavit by the offender's wife makes abundantly clear that she and their two young sons have found their enforced separation from him a most distressing experience. There is confirmation of this in the other documentary evidence, particularly the reports by Dr Parras. Mr Pickin fairly conceded, however, that in accordance with sentencing principles, the family hardship is not at a level that would justify some mitigation of sentence. I do, however, acknowledge the hardship to the offender's family that is an indirect consequence of his criminal conduct. This simply serves to highlight that there were a number of ways in which the offender was not thinking of consequences when he responded to the command to attend the airport on 22 March 2009. 63There are many positive expressions of the offender's personal characteristics in the testimonials that were tendered. He is described as well-liked, hard-working, dependable, trustworthy, loyal, loving and honest. 64Mr Watson-Munro's report recounts much of the circumstances of the offender's life that are set out elsewhere in the documentary material. He administered the Beck Depression Inventory which he described as canvassing a range of psychological and physiological symptoms of depression and anxiety experienced by the subject over the previous fortnight. The results indicated "a significant degree of unresolved depression and anxiety". However, given that the results are based upon symptoms reported to have been experienced in only the previous fortnight, and that Mr Watson-Munro refers to some aspects having become more acute as the sentence hearing approached, it is difficult to draw any useful conclusion as to whether depression and anxiety are long-term conditions. None of the other material before me supports such a proposition. 65In the concluding section of his report, Mr Watson-Munro referred to the offender having "continuing themes of low self-esteem, intermittent depression and anxiety as an adult". That seems to be at odds with, or at least not supported by, all of the positive descriptions of the offender's personality in the other evidence. Not even the offender himself claims to have experienced symptoms consistent with those described by Mr Watson-Munro. 66I have not referred to all of the opinions expressed in the report. With respect to Mr Watson-Munro, I do not find the report particularly helpful. I have formed a generally favourable view of the subjective case presented by the offender upon a consideration of the other material.

Specific mitigating features 67The offender was charged with riot and affray on 3 July 2009 and with murder on 11 August 2009. He participated in a protracted committal hearing before being committed for trial on 23 September 2010. He pleaded not guilty to murder, riot and affray upon arraignment in this Court. He pleaded guilty to manslaughter and affray on 9 May 2011. 68I accept that there were negotiations with the Crown on behalf of the offender as to the facts upon which he would plead to manslaughter following my sentencing of Mr Pirini on 18 March 2011. The fact of the matter is, of course, that if he knew he was guilty upon the basis of the agreed facts, there was nothing stopping him indicating that at an earlier time. I accept, also, that whilst the pleas were entered on the date set for trial, they were indicated in the weeks before. 69Having regard to this chronology, the utilitarian benefit of the offender's pleas of guilty warrants a reduction of his sentence of 12.5 per cent. A plea entered at such a late stage would ordinarily warrant a reduction of around 10 per cent but in this case there is the potential length and complexity of the prospective trial that should also be taken into account. 70The offender will also be given credit for his lack of previous convictions, his prior good character (aside from his being a member of the Comanchero), his good prospects of rehabilitation and the unlikelihood of his re-offending. 71I am also satisfied that the offender is genuinely remorseful. There is abundant evidence of this. I take into account not only his empathic expressions of contrition in relation to the family of the deceased, but also the regret that he has for the unfortunate witnesses to the violence for which he shares responsibility.

Sentencing of co-offenders 72There is no need for me to outline in any great detail the sentencing of co-offenders. His Honour Judge Charteris sentenced the offenders AL and SP and I have sentenced Messrs Pirini, La Rosa and Aouli. Mr Pickin, on behalf of the offender, accepted that "a sentence very similar to the sentences that your Honour's imposed for the other three would be appropriate for my client", subject only to the extent of the reduction allowed for his pleas. 73AL and SP each pleaded guilty to riot and affray. Charteris DCJ sentenced them both to a total term of 3 years with a non-parole period of 9 months. He allowed a reduction of 55 per cent for their pleas of guilty and assistance to authorities. He adopted a starting point for the affray sentence of 3 years and a starting point for the riot sentence of 6 years. The sentences were partially accumulated by 4 months. 74I sentenced Mr Pirini to an overall term of 6 years 6 months with a non-parole period of 3 years 6 months. The sentence for affray was 2 years 2 months (starting point 2 years 8 months) and the sentence for manslaughter was 6 years (starting point 7 years 6 months). The sentences were reduced by 20 per cent for his pleas of guilty which were entered last year at the arraignment phase in this Court. 75Mr La Rosa was sentenced to an overall term of 7 years 1 month with a non-parole period of 3 years 9 months. The sentence for affray was 2 years 4 months (starting point 2 years 9 months) and the sentence for manslaughter was 6 years 7 months (starting point 7 years 9 months). The sentences were reduced by 15 per cent for his pleas of guilty which were entered on 8 April 2011, a month before the trial date. 76Mr Aouli was sentenced to an overall term of 6 years 2 months with a non-parole period of 3 years 6 months. The sentence for affray was 2 years 5 months (starting point 2 years 9 months) and the sentence for manslaughter was 5 years 8 months (starting point 6 years 6 months). The sentences were reduced by 12.5 per cent for his pleas of guilty which were entered on 9 May 2011. That was the trial date but I took into account that Mr Aouli's intention to plead guilty was known before then. 77The starting point for the sentence for manslaughter in Mr Aouli's case was less than that which was adopted in the cases of Messrs Pirini and La Rosa. The reason was that the agreed facts in Mr Aouli's case yielded a lesser assessment of objective seriousness, a matter which the Crown conceded. 78The subjective cases presented on behalf of each of Messrs Pirini, La Rosa and Aouli were similar in terms of their mitigating weight to that which has been presented on behalf of the offender. There was, however, a feature that was present in the case of Messrs La Rosa and Aouli that was not present in Mr Pirini's case and that was that they were on conditional liberty at the time of the offences. In my view, it would be appropriate to adopt the starting points for each of the sentences that were applied in the sentencing of Mr Pirini. The final sentence will be greater because of the lesser reduction for the offender's pleas of guilty.

Other sentencing considerations 79I am satisfied that there are special circumstances for reducing the proportion of the sentence to be represented by the non-parole period. There is the partial accumulation of sentence that I propose to apply in the same manner as I did in the other cases. More pertinently, however, I am satisfied that there should be a longer parole period to better ensure that after his release from his first experience of full-time imprisonment, he settles back into a lifestyle akin to that which he led prior to his involvement with the Comanchero. An extended period of supervision by the Probation and Parole Service will be of assistance in ensuring that the party lifestyle, with binge drinking and recreational use of illicit drugs, is a thing of the past. It will also assist in ensuring that the offender develops social contacts that do not include his former Comanchero associates. 80It was common ground that to give credit for pre-sentence custody, the sentence should date from 4 July 2009.

SENTENCE On each: Convicted. Affray: Sentenced to a fixed term of imprisonment of 2 years 4 months. The sentence is to date from 4 July 2009 and expire on 3 November 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 4 January 2010. The offender will be eligible for release on parole upon the expiration of the non-parole period on 3 April 2013. The total term will expire on 3 August 2016. That is a total sentence of 7 years 1 month with a non-parole period of 3 years 9 months. The sentence of 2 years 4 months for the affray, but for the offender's plea of guilty, would have been one of 2 years 8 months. The sentence of 6 years 7 months for the manslaughter, but for the offender's plea of guilty, would have been one of 7 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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