178 A Crim R 281
Hawi v R [2014] NSWCCA 83
Lavender v R [2006] NSWCCA 24
Muldrock v The Queen [2011] HCA 39
244 CLR 120
Power v R [1974] HCA 26
131 CLR 623
R v Aouli [2011] NSWSC 1393
R v Caroll
Caroll v R [2010] NSWCCA 55
Source
Original judgment source is linked above.
Catchwords
178 A Crim R 281
Hawi v R [2014] NSWCCA 83
Lavender v R [2006] NSWCCA 24
Muldrock v The Queen [2011] HCA 39244 CLR 120
Power v R [1974] HCA 26131 CLR 623
R v Aouli [2011] NSWSC 1393
R v CarollCaroll v R [2010] NSWCCA 55125 A Crim R 37
R v Menzies [2012] NSWSC 158
R v NewmanR v Simpson [2004] NSWCCA 102
Judgment (2 paragraphs)
[1]
SENTENCE
HIS HONOUR:
Course of proceedings
Anthony Zervas (the deceased) was killed in Terminal 3 at Sydney Airport on 22 March 2009 during a brawl between rival motorcycle clubs, the Hells Angels and the Comancheros. The offender was the national president of the Comancheros. The deceased was the brother of a Hells Angels member, Peter Zervas.
Along with other members of the Comancheros the offender stood trial for murder on 24 May 2011. The trial ran for five months with the jury retiring on 29 September 2011. On 2 November 2011 the offender was convicted of murder and affray. On 10 April 2012 the offender was sentenced as follows:
Affray - Imprisonment for a fixed term of 3 years and 6 months, commencing 16 May 2009.
Murder - Imprisonment for 28 years with a non-parole period of 21 years to commence on 16 November 2009.
The offender appealed against his conviction for murder. On 16 May 2014 the Court of Criminal Appeal quashed his conviction for murder and ordered a retrial (Hawi v R [2014] NSWCCA 83). On 23 June 2014 the offender was granted bail by Harrison J (R v Hawi [2014] NSWSC 837). The bail conditions required that the offender be of good behaviour, report daily, observe a curfew between 8pm and 6am and abide by strict non-communication and non-association orders. As of that date, the offender had served a total of 5 years and 40 days in custody, all in maximum security. The sentence for the affray offence expired in its entirety on 5 November 2012.
The offender first offered to plead guilty to manslaughter on 29 April 2011, approximately 10 days before the commencement of the trial. This offer was rejected by the Crown. On 4 June 2014 the offer to plead guilty to manslaughter was renewed and was accepted by the DPP on 25 July 2014. On 5 September 2014 the offender entered a plea of guilty to the offence of manslaughter before Johnson J on arraignment. The offender is now to be sentenced for the offence of manslaughter.
Factual background
It has been agreed between the Crown and the offender that he is to be sentenced on the basis of the following facts. Accordingly, when passing sentence on the offender, I am precluded from taking into account other matters which arose during the trial, nor can I make further findings of fact. In other words, I am bound by the statement of agreed facts.
There was ongoing hostility between the Comancheros and the Hells Angels motorcycle clubs in the period leading up to 22 March 2009. The offender had been the national president of the Comancheros since 2002. The club had a hierarchical structure with strict rules and a strong culture of loyalty between members of the club.
On 21 March 2009 the offender flew to Melbourne with four other members of the Comancheros: Christian Menzies (Menzies), Ishmail Eken (Eken), Pomare Pirini (Pirini) and Maher Aouli (Aouli).
On 22 March 2009 the offender returned on a Qantas flight to Sydney with Menzies, Eken, Pirini and Aouli. He was seated with Eken and Menzies on the flight. By chance Derek Wainohu (Wainohu), the president of the Hells Angels was travelling on the flight. Both Aouli and Wainohu contacted members of their respective clubs to come to the airport.
Seven members or associates of the Comancheros subsequently arrived at the airport. Five of them went to Gate 5 while two of them, Fares Abounader (Abounader) and Usama Potrus (Potrus), remained outside security.
Seven members or associates of the Hells Angels arrived at the airport. Of these seven men, Tom Baker (Baker) and David Padovan (Padovan) went to Gate 5. The remaining five men (Musa Ovalle, the deceased, Peter Zervas, Elias Khoury and Peter Martin) remained in the terminal and did not go through security to Gate 5 where the affray took place.
There was a confrontation almost immediately after the passengers disembarked. The offender approached Wainohu on the concourse immediately opposite Gate 5. They argued. The offender noticed the group of Comancheros who had come to the airport approaching at a fast pace. Wainohu walked a short distance away and then returned. The offender threw a punch at him. Others became involved in the fighting and the offender ended on the ground fighting with Baker. A number of the Comancheros turned on Padovan and pursued him along the concourse kicking and punching him until he went to the ground where he was further kicked and punched. He lost his shirt at some stage of the assault.
The fighting then broke up. The Comancheros regrouped. Padovan returned to Wainohu and Baker. Before the Comancheros left the scene, the offender called out threats in the direction of the Hells Angels. Witnesses gave evidence of him saying "You're dead, you're fucking dead"; "Next time we see you, you're going to have bullet holes through you. You are a dead man walking." Or "You're a dead man, you're fucking dead. You've got bullet holes in you." The offender did not dispute that he said these things. He was angry.
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 shocked, horrified and scared by what they witnessed.
The 10 Comanchero members, including the offender, exited the secured area and entered Terminal 3. They met up with Abounader and Potrus who had been waiting outside the secured area. The group of now 12 Comanchero members/associates then moved quickly in the direction of the group of 5 Hells Angels members/associates who were within the departure terminal behind the check in counters.
When the two groups came together, there was a short verbal argument between the offender and Peter Zervas. The offender and another witness observed that Peter Zervas was wearing a knuckleduster. The deceased then moved, pulling his hood up over his head and from behind the offender attempted to stab him in the temple with a pair of scissors. The deceased did inflict some injury to the offender's eye, his hand, his shoulder and his tricep. As the deceased moved forward in this manner, one of the Comancheros (mistakenly) yelled out "He's got a nug" (meaning "He's got gun"). At that point a fight erupted between the two groups.
Anthony Zervas (the deceased) was 161cms tall and weighed 58kgs. He was found to have extremely high levels of cocaine and methadone in his system. The concentration of the blood level of cocaine was 25 times the median fatal concentration. If not for the physical injuries, Dr Duflou, a forensic pathologist, would have considered that this was the cause of death. He also had very high levels of methadone of 6.9mg/L, three times the highest level of fatal overdose in a recent study referred to by Dr Duflou in evidence. The deceased had inflicted similar injuries on an off duty police officer only days earlier.
After the fight erupted behind the counters, it continued as the participants moved from behind the check in counters to the area at the front of the Terminal. The offender was part of the fighting group, which was moving through the check in counters.
Eyewitnesses described the riot as breaking out with both sides fighting each other and punches flying everywhere, being an "all in brawl" with "everybody" punching. After the two groups moved to the area in front of the check in counters, the fighters broke off into smaller groups. Some eyewitnesses described men, including Hells Angels, picking up bollards, which have a heavy base and weigh about 12 kilograms, and using them in the general fighting (in addition to the assault upon the deceased). Witnesses spoke of the riot as "an explosion of fighting" and "a large group of men fighting incredibly violently and aggressively" and "chaotic and quite wild and uncontrolled".
The deceased was pursued to the front of the terminal where he ended on the ground near the glass wall. The fatal assault upon him took place as he lay on the ground within a metre or two of an elderly couple who were seated on a bench waiting for a wheelchair. A member of the Comancheros (not the offender) picked up a bollard vertically and rammed it downwards so that the base of it struck the deceased when he was on the ground, causing severe head injuries which were fatal.
The deceased 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. The stab wounds injured the right lung, liver, stomach and caused significant internal bleeding. The deceased's head injuries were severe and included extensive 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.
The offender is depicted in footage recorded by a tourist (the "Deng footage") as being in the vicinity of the fatal assault and then immediately moving towards the exit doors. It is not alleged that he was part of the fatal assault upon the deceased. He shortly afterwards left the terminal in a taxi with Menzies, La Rosa and others.
The riot took place over a very short time. The physical fighting occupied less than one minute. From the time that the deceased attempted to stab the offender in the temple, to the time that the offender left the airport, was approximately 36 seconds. A large number of people in the airport witnessed the violence which they found terrifying and distressing.
In relation to this offence of manslaughter, the offender was part of a joint criminal enterprise to commit an unlawful and dangerous act, namely the physical assault on one or more of the Hells Angels realising there was an appreciable risk of serious injury being occasioned to a person. The offender entered into the joint criminal enterprise as the two groups came together.
Seriousness of the offending
The objective seriousness of the offending was substantial. In reaching that conclusion, I accept that the death of the deceased was not something which was planned. Nevertheless, it was the product of actions of the offender and those with him which brought about an appreciable risk of serious injury being occasioned. It is also of significance that the group of 5 Hells Angels were heavily outnumbered when the 12 Comancheros moved quickly in their direction within the departure terminal behind the check in counters. This increased the risk of serious injury being occasioned.
Although the offender did not play a physical role in the assault on the deceased, he was part of the group of men who were fighting as they came through the check in counters. The extent and ferocity of the fighting is described at [18] - [19] hereof. The extent of the injuries suffered by the deceased is indicative of this ferocity.
An aggravating factor of the conduct which constituted this offence was that it took place at the airport in the presence of many innocent bystanders. In R v Menzies [2012] NSWSC 158 at [48] R A Hulme J said:
"48 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. …"
In the same judgment at [80] - [81] his Honour said:
"80 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.
81 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."
R A Hulme J made a similar assessment of such conduct in a public place in R v Pirini [2011] NSWSC 1395 at [39] - [40]:
"39 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.
40 It 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."
I fully endorse those comments of R A Hulme J and regard them as applicable to the offender's participation in such conduct. I take those matters into account when assessing the objective seriousness of the offending in this case.
Another matter which is relevant to the objective seriousness of the offending is the offender's position as national president of the Comancheros, a hierarchical organisation with a strong culture of loyalty between members. This was a position which at the time of the deceased's death the offender had held for almost 7 years. This is not to say that the offender is being sentenced for holding that position, nor is the position per se an aggravating factor. The aggravating factor is that he was a willing participant in the brawl. His presence and participation would undoubtedly have had the effect of authorising and approving the actions of other Comanchero participants, in particular the person who bludgeoned the deceased to death. In an organisation such as the Comancheros, being in a command position such as national president, inevitably involves some responsibility for the actions of club members in circumstances where he was present.
By way of mitigation there were elements of provocation on the part of the deceased in that he precipitated the actual physical violence by attacking the offender with a pair of scissors and causing injury to him. It needs, however, to be kept in mind that at that point in time there had already been a short verbal argument between the offender and Peter Zervas and that the Comancheros had moved quickly towards the Hells Angels.
Subjective features
The offender did not give evidence in the sentence proceedings. Evidence as to his personal circumstances came from the report of a psychologist, Tim Watson-Munro, dated 23 February 2012 and affidavits from his wife, relatives and friends, and of course the material I received today.
The offender was born in Beirut, Lebanon in June 1980 and is now aged 34. He was 28 at the time of the offences. He has a close relationship with his parents, brother and three sisters. The family moved to Australia in 1985. After obtaining his school certificate at the age of about 16, he left high school to attend TAFE and take an apprenticeship in his father's spray painting business where he worked for 3 - 4 years. He then bought a car detailing business before establishing a refrigerated transport company in 2007. He was running this business until he went into custody. The refrigerated transport business ceased operation when he went into custody. He had been a member of the Comancheros from the age of 18.
The offender does not have a history of drug or alcohol abuse. Before his incarceration he appears to have led a settled life characterised by self employment and involvement with his family. He began his relationship with his wife in 1995 and they were married in 2002. He has 2 sons, aged 11 and 5. Their second son was born shortly after the offender was arrested for murder and remanded in custody. During the course of these sentence proceedings, he lost his third child who was born prematurely in January 2015.
Mr Watson-Munro stated that the offender exhibited some regret referable to the deceased and accepted responsibility for the affray, although he had not demonstrated remorse or accepted responsibility for the death of the deceased. Mr Watson-Munro found that the offender was suffering a chronic anxiety disorder referable to his incarceration compounded by depression in connection with separation from his family.
This has been the offender's first period of full time imprisonment. His criminal history includes a finding of guilt for assault occasioning actual bodily harm in 1996 in the Children's Court when he was aged 16. He has been convicted of a number of driving offences and received penalties which include a 3 month suspended sentence of imprisonment for driving while disqualified. He was fined for using offensive language and in 2005 was fined for possession of a prescribed restricted substance. Having regard to the nature of these offences and when they were committed, this is not a significant record of previous convictions.
Remorse
His cousin, Hassan Hijazi, referred in his affidavit, to the offender expressing regret about the death of the deceased. He was of the opinion that the offender's attitude to what happened at the airport had changed since his time in prison. Talal Eloss, a friend, said in his affidavit that following his release from prison the offender expressed sorrow for what the deceased's mother was going through and said that he regretted "everything that happened".
I accept that the original offer to plead guilty to the offence of manslaughter and its subsequent renewal is evidence of remorse on the offender's part.
In the circumstances, I am prepared to accept that in contrast to when he was sentenced by R A Hulme J in April 2012, the offender now has some remorse for his part in what happened to the deceased at the airport.
Rehabilitation prospects and likelihood of re-offending
The Corrective Service notes record that the offender was generally calm, polite, compliant and co-operative while in prison. It was noted that when working he had a good attendance record and got on with both staff and other inmates. Despite the occurrence of two minor incidents while in custody, the majority of entries in his case notes were positive and his good behaviour was often cited.
Since his release from custody, the offender has undertaken work with Recon Group, as well as voluntary work with an indigenous community based program called Recon Indigenous Group. This program is operated for indigenous people with disadvantaged backgrounds in order to help them with developing skills and job placement. His wife, relatives and friends have attested in their affidavits to the offender being a changed person since his release from custody. The offender has also worked voluntarily at Al Zahra Funeral Services with a view to giving back to the community and assisting grieving families. The offender has complied with his bail conditions, both before trial and after his appeal.
The offender told Mr Watson-Munro that he had been replaced as national president of the Comancheros. His wife stated in her affidavit that he had told her that he "wants nothing more to do with the club" and has not associated with members of the club.
The offender's present relationship with the Comancheros is not particularly clear. There is no evidence of any contact between him and the Comancheros since he was released on bail. Corrective Service records of visitors to him while he was in custody show that he was regularly visited by persons who are or were members of the Comancheros. Those visits continued up to May 2014. There has been no suggestion of any unlawful conduct associated with these visits.
While it is difficult to predict future behaviour, the support that the offender is receiving from his family and friends, his strong record of employment and the absence of any history of drug or alcohol abuse, and the absence of significant previous convictions, all support the proposition that he has good rehabilitation prospects and that there is little likelihood of him re-offending. My hesitation in making an unqualified finding to that effect is the fact of the visits to him while in custody up to May 2014 by present or former members of the Comancheros. On balance, however, I am prepared to find that the offender's prospects of rehabilitation and not re-offending are good.
Custodial conditions
It was common ground that the offender was held on non-association (PRNA) for approximately 6 months. He was held on limited association (PRLA) for approximately 3 months. Otherwise, although held in maximum security, he was part of the normal prison population. In addition, during the committal and trial, it was necessary for him to rise early and not return to his cell until late in the evening as a result of the need to travel to and from court each day in a prison truck. The last relevant matter is that the offender has been subject to and has complied with bail conditions while at liberty since 23 June 2014. I have taken into account those matters, in particular the onerous conditions of custody when the offender was held when subject to PRNA and PRLA.
Discount for plea of guilty
There was an issue as to the extent of the discount to which the offender was entitled for his plea of guilty. The offender submitted that he was entitled to a discount of 20 percent, whereas the Crown submitted that 15 percent was appropriate.
The offender was charged with murder on 30 June 2009. A committal hearing took place over several weeks, commencing July 2010 and culminating in him being committed for trial on 23 September 2010. On 25 November 2010 the offender was arraigned in the Supreme Court whereupon he entered pleas of not guilty and the matter was listed for trial commencing 9 May 2011. The offender's first offer to plead guilty to manslaughter was made on 29 April 2011 and was rejected before 9 May 2011.
The Crown sought to rationalise the discounts for pleas of guilty by reference to other Comancheros who had been charged with offences arising from what had occurred at the airport. The Crown submitted that those who pleaded guilty, or offered to plead guilty (such offers being rejected by the Crown) at arraignment should receive a reduction in sentence of 20 percent. Those who pleaded guilty at the trial should receive a reduction in sentence of 12.5 percent. The Crown noted that La Rosa pleaded guilty one month before trial and received a reduction in sentence of 15 percent for his plea. Abounader made an offer to plead guilty to manslaughter on the first day of trial but the offer was rejected. He then pleaded guilty to riot prior to his re-trial on a charge of manslaughter and received a discount in sentence of 15 percent. Menzies made no formal offer before the first trial but pleaded guilty to manslaughter at his arraignment on the re-trial and received a discount of sentence of 15 percent.
The Crown submitted that the timing and circumstances of the offender's first offer to plead guilty, made approximately nine days before the day fixed for the commencement of the first trial, and then the plea of guilty on arraignment before the retrial, were such that a similar reduction in sentence to that received by La Rosa, Abounader and Menzies would be appropriate.
I do not agree. The circumstances in which the offender came to plead guilty are very different to those relating to Menzies and different to La Rosa and Abounader, although closer than in the case of Menzies. It also needs to be kept in mind that the offer to plead guilty to manslaughter before the retrial on murder was of considerable utility because even though he was the only defendant, the trial would have been lengthy. An appropriate discount for the offender's plea of guilty is 17½ percent.
Parity
The maximum penalty for manslaughter is imprisonment for 25 years. The offence covers a wide variety of circumstances calling for a wide variety of penalties and other cases do not necessarily set a "range" (R v Green [1999] NSWCCA 97 at [24]). In the present case, however, a number of co-offenders have been sentenced for manslaughter arising out of the same incident.
Pirini pleaded guilty to affray and manslaughter at arraignment, before the first trial. The circumstances of Pirini's offending were similar to those of the present offender, although he did not hold a senior position in the Comanchero organisation (R v Pirini [2011] NSWSC 1395).
Pirini engaged in a fight with an opposing club member in the check-in area. He was not involved with the fatal assault upon the deceased. He was not alleged to have been involved in any planning. Pirini gave evidence of his remorse, which was found to be genuine, and he was found to have a good subjective case overall. A reduction of 20 percent was allowed for his plea of guilty. After this discount, a sentence of 6 years for the manslaughter with a non-parole period of 3 years was imposed to be partially accumulated by 6 months onto his affray sentence.
La Rosa pleaded guilty on 8 April 2011 to affray and manslaughter. He also was not sentenced for directly causing the death of the deceased but for participation in a joint criminal enterprise on the same basis as Pirini and the offender. His role in the brawl did not involve any physical fighting but he was willing to assist if required. The sentencing judge was satisfied, having heard his oral evidence, that the offender was genuinely remorseful and had otherwise a number of mitigating factors in his favour. However, he was on bail for a driving offence at the time. La Rosa was sentenced with a starting point sentence of 7 years 9 months, discounted by 15 percent for his plea of guilty, resulting in a sentence of 6 years and 7 months with a non-parole period of 3 years and 3 months.
Tiago Costa (Costa) pleaded guilty on 9 May 2011 to affray and manslaughter. Costa was one of the men who had attended the airport in response to the call. He was also not sentenced for directly causing the death of the deceased but for participation in a joint criminal enterprise on the same basis as Pirini, La Rosa and the offender. The sentencing judge found that the culpability of Costa and Pirini were "virtually indistinguishable" (R v Costa [2011] NSWSC 1392 at [37]).
He also found that Costa presented a favourable subjective case and imposed the same starting sentence of 7 years and 6 months as he had imposed upon Pirini but with a discount of 12.5 percent for his plea on the first day of trial, resulting in a sentence of 6 years 7 months for the manslaughter with a non-parole period of 3 years 3 months.
Menzies was acquitted of murder at trial and the jury were unable to reach a verdict in relation to manslaughter. He was found guilty of affray. He subsequently entered a plea of guilty to manslaughter at arraignment on 2 December 2011. His plea to manslaughter was on the basis that he was not directly involved in the fatal assault upon the deceased but was complicit in the killing by virtue of being a participant in the joint criminal enterprise (R v Menzies [2012] NSWSC 158 at [40]).
The sentencing judge found that Menzies' involvement in the events in the departure hall was "greater than those already sentenced for the same offence" (at [84]). Menzies had a criminal history which included offences of violence in public places and a history of drug use and therefore was not of prior good character. He left the Comancheros while in custody and his remorse was accepted as genuine. The sentencing judge took into account that the custodial conditions during the lengthy trial were onerous and stated "While this is not a major factor in mitigation, it is something to which I have regard" (at [73]). Menzies received a starting point sentence of 8 years and 5 months for manslaughter. After a reduction of 15 percent for his plea of guilty, this resulted in a sentence of 7 years 2 months with a non-parole period of 3 years 8 months.
When passing sentence on the offender, I have had regard to the sentences imposed on Pirini, La Rosa, Costa and Menzies.
Special circumstances
The offender submitted that by reference to those other Comancheros who had been sentenced for manslaughter, he had already served approximately 1½ - 2 years longer in custody when compared with the non-parole periods in their sentences. He noted that all of those persons had now been released from custody and granted parole without incident. The offender drew the Court's attention to a letter from the State Parole Authority (SPA) dated 21 November 2014 which indicated "It is not possible for the Authority to convene at short notice". The offender submitted that the practical consequence of this was that should a sentence of longer than 3 years' imprisonment be imposed on him (even if backdated with a non-parole period expiring before the sentencing date), it was inevitable that he would be returned to custody. The offender submitted that he was likely to remain in custody pending the obtaining of reports as required under s135(2) Crimes (Administration of Sentences) Act 1999, the convening of the SPA and a determination by the SPA.
The offender submitted that these considerations, together with the fact that he had already served over 5 years in custody, created an unusual and in many respects unique circumstance which called for flexibility of approach in sentencing. The offender submitted that while as a rule of practice a court should generally backdate a sentence to take into account pre-sentence custody, there were occasions when that practice might be departed from (R v Leete [2001] NSWCCA 337; 125 A Crim R 37). He submitted that s 24(a) of the Crimes (Sentencing Procedure) Act 1999 did not prescribe any mode for taking into account the time for which an offender had been held in custody.
By reference to such cases as R v Caroll; Caroll v R [2010] NSWCCA 55; 77 NSWLR 45 at [65] and Lavender v R [2006] NSWCCA 24 he submitted that a sentencing judge should have regard to the fact that an offender "has been buffeted by the legal system in a manner which must be recognised". The offender submitted that in accordance with that approach, the sentence to be imposed on him should be of such a kind that it would avoid him being returned to custody for an indefinite period while reports were obtained, the SPA convened and the SPA reached a determination.
The suggestion for achieving such a result put forward by the offender was for a sentence of less than 3 years to be imposed, having regard to the custody already served. In the alternative, he submitted that he should be sentenced to a suspended sentence for a period of at most 2 years with conditions akin to those that would be imposed on parole to be immediately suspended upon him entering into those conditions. Such conditions might include residential, good behaviour and non-association conditions. The offender submitted that another alternative taking into account time served would be the imposition of good behaviour bonds under s 9 together with similar conditions.
The offender submitted that taking into account time served, it was open to the Court to backdate the commencement date of a sentence so that the sentence amounted to 3 years or less thereby enabling the Court to fix a parole period with conditions as ordered by the Court. The offender submitted that taking into account the maximum penalty, the circumstances of the offence, his personal circumstances, the principle of parity and time served, the Court should impose a sentence that allowed him to remain in the community with no further time to serve in custody and would avoid the consequence of a disproportionate sentence.
It is true that the offender finds himself potentially in an unfortunate situation where it may be necessary for him to be returned to custody so as to allow the steps set out in the Crimes (Sentencing Procedure) Act 1999 to be taken. It is, however, not part of this Court's function to engage in a process of prediction about what executive or administrative action might be taken in relation to a prisoner's custody, if a proper and appropriate sentence is imposed.
The usual and preferable course for taking into account pre-sentence custody is to backdate the sentence imposed to reflect the time already served while still pronouncing the appropriate sentence for the offence and the offender: Wiggins v R [2010] NSWCCA 30 at [3] - [8]. The reasons in favour of backdating, rather than "discounting", were set out by Howie J in R v Newman; R v Simpson [2004] NSWCCA 102; 145 A Crim R 361 at [27] where his Honour said:
"27 In my view, although there is an element of fiction involved in backdating a sentence to a period when the offender was not in custody, there is much to be said in its favour. Firstly, it preserves the denunciatory and deterrent value of the sentence to be pronounced. If a sentence is decreased by a substantial period already served in custody, it can have the appearance of being inadequate both to public perception and when it appears in the statistical information that is now so often relied upon by sentencing courts. This was one of the reasons expressed in McHugh for the adoption of the practice and it remains a highly important consideration."
This passage was approved by Kirby J in Abdul-Kadir v R [2007] NSWCCA 329; 178 A Crim R 281.
Those considerations are particularly relevant in a case such as this which had such a high public profile and where there is a significant public interest in an appropriate sentence being imposed. I have concluded that the appropriate course is to sentence the offender to a term of imprisonment which adequately reflects the criminality involved in this offence and properly reflects principles of denunciation and general deterrence, as well as taking into account the particular features applicable to this offender (many of which are favourable) by backdating the sentence. Any other approach, in particular an approach designed to avoid the offender returning to custody, would result in a sentence which would be an inadequate sentence in terms of the public record and other principles referred to in R v Newman; R v Simpson.
It is not without significance that in R v Aouli [2011] NSWSC 1393 at [96] R A Hulme J said:
"96 Finally, 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."
I respectfully agree with that approach and propose to apply it.
This approach means that the offender will be subject to the processes and supervision of the SPA. In that regard, it should be remembered that the non-parole period is a minimum period of actual incarceration that an offender must spend in full time custody, having regard to all elements of punishment: Power v R [1974] HCA 26; 131 CLR 623 at 628-629.
Except in the case of sentences of 3 years or less, a non-parole period is not a maximum period of fulltime imprisonment with an automatic right to release to parole. Whenever a court imposes a sentence of imprisonment for a term greater than 3 years, release to parole and the terms of the parole order are matters solely for the parole authority: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [4]. An appropriate sentence in this case, taking into account principles of punishment, deterrence and rehabilitation is a sentence of substantially more than 3 years. In such a case the legislature contemplates that a release on parole is a matter for the authorities and not the sentencing court: Wilson v R [2008] NSWCCA 245 at [29].
Given the somewhat unusual circumstances in which the offender finds himself I am prepared to find special circumstances for the purpose of adjusting the ratio between the parole and non-parole periods in accordance with s44 of the Crimes (Sentencing Procedure) Act 1999.
Conclusion and sentence
Engaging in a process of instinctive synthesis with the maximum penalty taking its place as a yardstick, but also having regard to the objective seriousness of the offence, the offender's positive subjective case and the principle of parity, together with the other matters to which I have referred, I take as the starting point a head sentence of 7 years and 6 months. After the 17½ percent discount for the utility of the plea of guilty, the head sentence becomes 6 years and 2 months. I fix a non-parole period of 3 years and 6 months. In accordance with the approach followed in relation to the other offenders involved in this incident, I propose to accumulate the sentence for manslaughter by 6 months on the sentence for affray.
In relation to the offence of manslaughter, the offender is sentenced to imprisonment comprising a non-parole period of 3 years and 6 months commencing 16 November 2009 and expiring 15 May 2013 with a balance of term of 2 years and 8 months expiring 15 January 2016.
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Decision last updated: 13 March 2015