Reliance was placed upon the words "although the true facts are probably otherwise…".
13 These comments, it was submitted, suggest that his Honour was unconsciously influenced by material which was not before him for the purpose of sentence or, at the very least, create a reasonable apprehension that he was. It is obvious that his Honour was concerned about the course which the proceedings had taken and felt it appropriate to say so. Nevertheless, he stated in the clearest of terms that he would determine sentence only upon the agreed facts, and the sentences themselves do not suggest otherwise. We are far from persuaded that his Honour was, or could reasonably be perceived to have been, influenced by material which was not in evidence.
14 We turn, then, to the complaint that the sentences do not reflect the different levels of culpability of each of the applicants and of their father. As to the applicants themselves, it was pointed out that Tony Eleter struck Joseph Attallah, whereas George Eleter did not inflict violence upon anyone, and it was argued that George Eleter should accordingly have been dealt with more leniently. It does not appear that any such submission was made to his Honour, who made no reference to that distinction in his remarks. (Counsel who appeared for the applicants in this Court had not appeared in the sentence proceedings.)
15 In any event, in the circumstances of this case, that distinction did not necessarily call for different sentences. It was the conduct of the group of offenders, who had arrived at the scene at about the same time, bent on retribution, which was significant here. It is important not to lose sight of the nature of the offence of affray, which is spelled out in the first two subsections of s 93C of the Crimes Act:
93C(1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 5 years.
(2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purpose of subsection (1).
16 This is not to deny that there may be cases in which the level of involvement of the various participants in an affray calls for some differentiation in penalty. As between the applicants, however, this was not such a case.
17 On the other hand, the culpability of Youssef Eleter was greater than that of the applicants. His Honour recognised as much in his remarks, as follows:
I am particularly concerned about the conduct of Youssef, as the father who no doubt exercised paternal influence over the others, and appears to have led the approach at the premises of Total Eternity Services when, not only should he not have been involved himself, but he should have discouraged and sought to prevent any such action on his sons' part. I therefore regard him as more responsible than the others for the affray.
18 However, there were subjective features of Youssef Eleter's case which called for a measure of leniency which the applicants could not claim. He was forty-eight years old at the time of sentence, and there was evidence that he had a number of significant health problems which would make his experience of imprisonment more burdensome than usual. In the result, his Honour did not differentiate between the sentence imposed upon him and that upon the applicants because he considered that "his incarceration will be more onerous than that of the others owing to his greater age and his physical infirmities". There is no error in this approach.
19 The same must be said of the complaint that his Honour failed to afford appropriate weight to the applicants' relative youth. The undoubted significance of youth in a sentencing determination has been the subject of ample authority, recently revisited in R v AEM Snr & Ors [2002] NSWCCA 58 at pars 96-98. Notwithstanding the desirability of fostering the rehabilitation of a youthful offender, considerations of general and particular deterrence remain important. His Honour's approach in the present case was consistent with that authority. His Honour passed a lesser sentence upon the juvenile, JO in the light of his youth, but the two years difference in age between that offender and the applicants was significant and clearly justified that course.
20 It was submitted that his Honour should have found special circumstances in the case of each applicant. His Honour referred to that issue, but said that he found no special circumstances "as matters of mitigation have been taken into account in fixing the head sentences…". Yet again, that was an approach open to his Honour. No doubt, there were features of the case which might have justified a finding of special circumstances, but that does not mean that his Honour's declining to do so amounted to an error warranting appellate intervention: R v Simpson (2001) 53 NSWLR 704, per Spigelman CJ at par 73.
21 Finally, it was submitted that the sentences of sixteen months imprisonment are manifestly excessive. Reliance was placed upon two decisions of this Court and Judicial Commission sentencing statistics.
22 In R Huynh & Ors [2000] NSWCCA 18, the offenders had been placed on recognizances for an offence of affray to which they had pleaded guilty. A Crown appeal was dismissed. The affray was a serious incident, in which one young man was stabbed to death and two others, including one of the respondents, were injured. Hulme J, with whom Spigelman CJ and Smart AJ agreed, distinguished between affrays which are premeditated and those which "break out spontaneously in response to an unforeseen event" (par 29). In that case, while there was premeditation by some of those involved in the affray, the respondents had no such premeditation, and Hulme J considered that their lenient treatment was justified by the limited extent of their "knowledge, participation and the duration of their participation…" (par 35).
23 R v Goh [2002] NSWCCA 234 was also a Crown appeal. Following the respondent's plea of guilty, a charge of affray had been dismissed pursuant to s10 of the Crimes (Sentencing Procedure) Act 1999. It was that dismissal which was the subject of complaint on appeal, the Crown accepting that a non-custodial disposition was appropriate. This affray was also an ugly incident but no one was killed. It seems that some of the participants were injured, including the respondent himself, but no one seriously. Again, the appeal was dismissed. Blanch J, with whom Spigelman CJ and Adams J agreed, noted the findings of the primary judge that the respondent "was only peripherally involved in what had happened and that he was as much a victim as he was a perpetrator" (par 13).
24 The relative lack of spontaneity of the present affray, and the level of involvement of the applicants, distinguish this case from those two cases. The Judicial Commission statistics disclose that, of the fifty cases recorded, eighteen resulted in sentences of fulltime imprisonment. Sentences in those eighteen cases ranged from six months to three years, the most common sentence (in eight of the cases) being twelve months.
25 While this Court has frequently said that figures of this kind should be approached with caution, especially when the sample is relatively small, it does appear that the sixteen month sentences imposed by his Honour are towards the top of the range. However, given the serious features of this offence of affray, it cannot be said that they were beyond the scope of the legitimate exercise of discretion. The sentences are severe but they are not manifestly excessive.
26 Leave to appeal is granted but the appeal is dismissed.