R v La Rosa

Supreme Court of NSW|2011-05-27|Before: Hulme J, Gregory J

Judgment 1HIS HONOUR: On 8 April 2011 the offender, Francesco La Rosa, 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 27 May 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. 5There had been hostility and enmity between members of the two clubs for some time prior to 22 March 2009. This resulted in various criminal acts being committed, including the firebombing of business premises belonging to the Hells Angels at Brighton; shots being fired into a tattoo parlour owned by a Hells Angels member in Petersham; and the bombing of the Hells Angels clubhouse. The first of those incidents occurred in October 2008 and the others occurred in February 2009. 6It is not alleged that the present offender was involved in any of these incidents but it is an agreed fact that they all occurred at a time when he was treasurer of the Comanchero. He was generally aware of the hostility between the Hells Angels and the Comanchero. 7There 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; as noted above, the offender was the treasurer; Rui Antao was the "nominee boss"; and Herb Laupepa was the Sergeant at Arms. 8On 22 March 2009 five members of the Comanchero boarded a Qantas flight in Melbourne destined for Sydney. They were Mahmoud Hawi, Canan (aka Ishmael) Eken, Christian Menzies, Maher Aouli and Pomare Pirini. They had all spent the weekend in Melbourne. 9By chance, Derek Wainohu, the president of the Hells Angels, happened to be on the same flight and was seen by Comanchero members. Hawi directed Aouli to contact Comanchero members in Sydney to have them attend Sydney airport. Wainohu sent text messages to members of his club for the same purpose. 10Passengers on the flight observed animosity from the Comanchero members towards Mr Wainohu before the flight took off. 11Seven Comanchero members arrived at the airport, presumably in response to the calls that had been made. They had made a prior stop at Brighton Le Sands on the way to the airport, where Usama Potrus and Farres Abounader spoke with other Comanchero members, Daux Ngakuru and Herb Laupepa. Once at the airport, five of them (AL, SP, Tiago Costa, Zoran Kisacanin and the offender) proceeded through security screening and went to Gate 5 where the flight was due. The other two (Farres Abounader and Usama Potrus) remained in the non-secure area of the terminal. 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.

The Gate 5 affray 13The flight landed at about 1.30pm. The 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, Derek Wainohu met up with Tom Baker and David Padovan. 14Mahmoud Hawi confronted Derek Wainohu. There was a short verbal argument before Wainohu was punched, causing him to fall to the ground. Members of the Comanchero were then observed to chase and assault David 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. 15There were a large number of members of the public at Gate 5 at the time, including children and elderly people. The offender accepts that those people who witnessed the affray were put in fear by his actions and those of his fellow Comanchero members. 16David Padovan re-joined Derek Wainohu and Tom Baker at the conclusion of the fighting. Mahmoud Hawi pointed at him and yelled out threats, including the words, "You're fucking dead" . The other Comanchero members, including the offender, were close by when this occurred. 17The entire incident, from the initial confrontation until the uttering of the threats, took less than 3 minutes. None of the participants received any serious injury. 18The ten Comanchero members then walked towards the exit and when they emerged into the non-secure area of the terminal they met up with Farres Abounader and Usama Potrus who were waiting in the vicinity of the escalator leading down to the baggage carousels.

The confrontation in the check-in area 19Instead of going downstairs to collect their baggage, the group of now 12 Comanchero members moved quickly towards the group of 5 Hells Angels members and associates, including the deceased, who were waiting in the departure hall. They met up with them at check-in counters 13 and 14, having covered a distance of about 73 metres to do so. 20There was a short verbal argument before a riot erupted. Witnesses described the two sides fighting each other and "punches flying everywhere". There is conflicting evidence as to precisely how the fighting started. Some say the deceased attempted to attack Mr Hawi whilst others say the Comancheros started it. This is not an issue that can be, or needs to be, resolved for present purposes. By his plea the offender has acknowledged that he was a party to a joint criminal enterprise to assault one or more Hells Angels members and that this involved an unlawful and dangerous act which objectively carried with it an appreciable risk of somebody suffering serious injury. 21The fighting commenced behind the check-in counters and continued as the participants moved between the counters towards the front of the terminal. Eyewitness 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 for queuing of passengers at the check-in counters were taken up and used as weapons. There were a number of fights taking place simultaneously. 22There is no evidence that the offender committed any physical acts during the brawl. By his plea, however, the offender accepts that he was willing to assist in the brawl if necessary. 23Mr 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, one inflicted by a pair of scissors and two were consistent with being inflicted by a knife. 24The assault upon the deceased was one of the fights occurring in the check-in area. The Crown alleges that at least three Comanchero members were directly responsible for inflicting the fatal injuries with a bollard and a knife but it does not allege that the offender was involved in this attack, or that he was in the immediate vicinity when it occurred. The offender acknowledges that the deceased died as a result of the actions of others in the riot but he has not nominated any of the individual participants who directly caused the death. 25Children and elderly people were among the members of the public who were present during the riot. Many witnesses commented on the extreme viciousness displayed by the two groups. Many also said that they were shocked and felt 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" . 26The fighting lasted just over one minute. The offender fled the airport at the same time as others. He left the scene in a taxi with AL, Christian Menzies and Mahmoud Hawi and they proceeded to Mr Hawi's parents' home. Four other participants (Messrs Pirini, Kisacanin, Eken and Aouli) left in another taxi but they were stopped by police at Brighton Le Sands. 27The offender was arrested on 3 August 2009. He was charged with riot and affray and refused bail. A charge of murder was preferred on 12 August 2009. Bail was granted on 27 August 2009 but revoked on an application to this Court by the Director of Public Prosecutions on 8 September 2009. He has been in continuous custody since that time. The parties have agreed that to give credit for pre-sentence custody, the offender's sentences should be back-dated to 12 August 2009.

Seriousness of the offences 28It 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. 29For 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. 30For 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 which objectively carried with it an appreciable risk of serious injury being occasioned to a person. 31As for the affray, it was relatively short lived and the offender's role was less than that of other participants. There is no evidence that he was involved in the punching and kicking of David Padovan whilst he was on the ground. Despite this, the offence is serious. It involved a considerable number of combatants. The location where it occurred is relevant, as also is the number and nature of innocent people who were present. These are prominent features and render the offence considerably more serious than if it had occurred elsewhere and otherwise. 32The starting point in assessing the gravity of an offence of manslaughter is to recognise that it involves the unlawful taking of a human life. There are, however, a wide variety of ways in which the crime of manslaughter can be committed and there are an equally wide variety of ways in which an offender may be culpable. 33The present case is one of considerable seriousness. The offender realised that by being a party to a joint enterprise with his fellow Comanchero members to assault the Hells Angels members, even though there is no evidence that he committed any physical acts during the brawl, he engaged in an activity that 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 discloses, as I have observed, that witnesses were shocked by the level of violence used, with comments made about the viciousness of it. Witnesses were, understandably, sickened and horrified. 34It must be acknowledged that the offender's role was, relatively speaking, minor. It is not alleged that he was involved in any physical fighting, but he was willing to assist if required. He was not armed and, unlike some others, he did not take up any object to use as a weapon. He was not near to, let alone 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. 35It was submitted by Mr Webb, counsel for the offender, that the circumstances of the offender's membership of the Comanchero motorcycle club, something which I will describe in some detail shortly, were relevant in this context and that they should lead to a finding that the offender's moral culpability was less than it otherwise might be. I have considered that submission but, in the end, have concluded that although it might, in part, explain the offender's involvement, it does not reduce his moral culpability at all. 36There 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 said in his evidence that he understood the trip to the airport was simply "to pick up the boys". I regard that as nonsense: seven large men in two cars, one being a Toyota Corolla, going to pick up 5 similarly large men, some of whom had luggage. Mr Webb conceded that it was open to me to conclude that the offender attended the airport with knowledge that there was a prospect of "trouble". I am satisfied of that. I accept, however, that it is unlikely that the offender had any idea that this "trouble" would be of the dimension of that which in fact occurred. 37Overall, I am of the view that the offender was a willing participant in offences that were of considerable seriousness. However, in assessing the appropriate sentences to impose, I must also bear in mind that the role that he played was significantly less than that of other participants.

Denunciation, punishment and deterrence 38Members 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. 39It 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 40The evidence tendered before me by Mr Webb as to the offender's personal circumstances comprised a statement by the offender; testimonials by a sister, his mother, Mr Antonio Brancato, Mr Peter Moniaci and Mr Jack Psaras; various business and vocational certificates; and a report by Mr Tim Watson-Munro, psychologist. In addition, the offender gave evidence, as did his sister, Ms Maria Brancato. 41The offender was born in 1972. He was aged 37 at the time of the offences and is 39 now. 42He has prior convictions for driving offences which are of no present significance with the exception that the offender was on bail for a relatively serious driving offence at the time he committed the offences for which he stands for sentence. That is an aggravating factor that must be taken into account. 43The offender was born in Sydney to parents of Italian heritage. He is the youngest of five children. His father died at the age of 55 when the offender was 9 years old. His mother is now 84 years of age and is not in the best of health. It would appear from the evidence of both the offender and his sister that the family is close and supportive. He has been receiving regular visits from family members, including his mother, since coming into custody. 44The statement by the offender's sister indicates that the offender is a person who is generous in terms of providing assistance to family members when required; that seemingly being the family culture. He is also generous to charities which he supports. These matters were confirmed in her oral evidence and, to some extent, by the briefer statement by the offender's mother. 45The offender was raised in the inner western suburbs and attended local primary and high schools until he completed the School Certificate at the end of Year 10. He was offered work the day after he left school and has been in steady employment since then. 46A motor mechanic apprenticeship was then completed over a period of four years. He worked for wages for some years before opening his own mechanical workshop, "Frank's Auto House", in 1998. That business flourished initially but had to be closed in 2003 due to high overheads and a downturn in work. The offender was able to readily obtain other employment, including driving concrete delivery trucks after he obtained a heavy truck licence. At the time of his arrest he had returned to work as a mechanic. 47The offender was married in 2001. His wife is a Thai national and she was not able to move to Australia until late 2004. The couple do not have any children but this is a hope that the offender has for the future. His wife has struggled with being on her own and has gone to live with her family overseas until the offender is released from custody. They do, however, maintain regular contact by telephone. 48The testimonials by Mr Brancato, Mr Moniaci and Mr Psaras attest to the offender having many positive personal qualities both in his work and in his social life. 49Mr Watson-Munro reported that the offender had long-standing issues with depression, anxiety and low self esteem. This commenced in his childhood and adolescence as a consequence of him suffering from morbid obesity. There have been no issues with alcohol or drugs but the offender's life has been substantially impacted by a difficulty in controlling his food intake and, in turn, his weight. In 2003 he weighed about 160 kilograms but after a year of concerted effort he was able to reduce to about 120 kilograms. He said that he put on weight when he came into custody but since the committal hearing last year he has lost weight through a desire to get healthy and change his life. 50The offender has had an interest in riding motorcycles. He came to know an older person who happened to be a life member of the Comanchero motorcycle club and he joined up himself in about 2003. He said in his written statement, "I knew I loved bikes and riding them and being part of a group that respected me for what I was and not what I looked like and I loved riding in a group and being part of something I had never experienced before" . 51The offender withdrew from membership of the Comanchero at some time in 2010. He had been the treasurer of his chapter for the last 2 years. His duties included paying the rent and other expenses as well as purchasing provisions for parties and barbecues. He was the leaseholder in respect of the clubhouse but he claimed that this was only because the real estate agent required the lessee to have an ABN, which he did. He said that being the holder of this office did not involve him in making any decisions about club business. 52The offender claimed, "I didn't get involved in any politics as I didn't want to get in any trouble" . When asked to explain what he meant by "trouble", he referred to fights at the clubhouse, members not paying their dues or not turning up at regular Friday night gatherings. He said that he was aware from what he heard from other members that there had been "burnings and bombings" and other "things of a criminal nature" but claimed to have had no involvement. 53The offender's decision to leave the Comanchero was prompted by a realisation that at his age he should be getting on with his life. He had communicated his decision to other members and there had been no recrimination. 54Psychometric testing by Mr Watson-Munro confirmed "a significant level of unresolved psychological distress". The offender had described to him feelings of sadness, pessimism, failure and intense feelings of guilt. It was Mr Watson-Munro's opinion that the offender requires treatment. He had been unable to engage in any form of psychotherapy as a consequence of his remand status but had hopes of doing so once sentenced, with a strong desire to continue following release. 55Mr Watson-Munro was of the view that the offender would benefit from some form of cognitive behaviour therapy focussed on maintaining his regimen of losing weight, in addition to appropriate social skills training and assertiveness training. He indicated that the offender would also benefit from therapy which addressed his depression, anxiety and strong feelings of remorse. A course of psychotropic medication might also assist. 56It was the opinion of Mr Watson-Munro that, having regard to the offender's attitude to the offences and their consequences, with continuing structure, supervision and treatment continuing for some time following release to parole, the overall prognosis is positive.

Plea of guilty 57I have earlier mentioned that the offender pleaded guilty to manslaughter and affray on 8 April 2011. He had been committed for trial for murder and affray on 23 September 2010 and a trial date for the offender, and a significant number of alleged co-offenders, had been fixed for 9 May 2011. The plea was entered after pre-trial case management procedures had been commenced and after I had sentenced a co-offender, Pomare Pirini. Although there was some consideration given to the possibility of pleading guilty to some offences, other than those upon which the offender had been committed for trial, it was acknowledged by the offender's counsel that it was the sentencing of Mr Pirini that "had a significant impact on his position". 58Ordinarily, the time of the entry of the offender's pleas would justify a reduction of sentence only in the order of 10 per cent. However, I am satisfied that there should be an additional component to reflect the length and complexity of the trial that was in prospect. I will allow for a reduction of 15 per cent.

Other mitigating factors 59There are a number of other statutory mitigating factors that I must take into account. It will be apparent from what I have set out earlier that the offender has no significant record of previous convictions and, I accept, was of prior good character. I am also satisfied that he is unlikely to re-offend and that he has good prospects of rehabilitation. 60I am also satisfied that the offender is genuinely remorseful. He expressed his regret for what happened and his sympathies for the family of the deceased, both in his statement and in his oral evidence. He said that he had empathy for the deceased's daughter, he being aware from his own experience what it feels like for a child to lose a parent. There was confirmation of this remorse in the statement of the offender's sister and the report by Mr Watson-Munro. At the end of his evidence in chief, the offender volunteered that he also wished to apologise to all who were present at the airport who were witnesses to the violent conduct that occurred.

Sentencing of co-offenders 61AL, 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. 62SP, 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. 63It is unnecessary to refer to the sentencing of AL and SP in any further detail. I undertook that task in sentencing Pomare 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 that are more directly relevant in the present case. 64Mr 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 up 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. 65Mr Pirini was 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. 66I 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. 67Mr 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. 68There are a number of obvious distinctions between the cases of Mr Pirini and the present offender. In the end, however, putting aside one particular factor, the differences largely balance themselves out. There is little to distinguish between their objective criminality. I do not regard the fact that Mr Pirini had been on the flight, whilst the offender had not, as being of any significance. If it made any difference, it would probably work against the offender in that he had a choice whether to attend the airport but Mr Pirini did not. The respective subjective cases are significantly different but in terms of those matters that justify some mitigation of sentence, the weight that should be accorded to them is largely the same. 69The one matter of significance that is present in the offender's case, but not in the case of Mr Pirini, is the fact that the offender was on conditional liberty at the time of the offences. His sentence should be more, but only very modestly so, for that reason. 70What I have said in the foregoing paragraph relates to the starting point for the sentences. There is another distinguishing feature that then needs to be taken into account. I allowed for a 20 per cent reduction of sentence in Mr Pirini's case because his pleas were entered at a much earlier time. The reduction in the present case will be, as I have said, 15 per cent.

Other sentencing considerations 71It 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. The 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. Mr Webb did not make any submission in opposition. I propose to proceed in the same fashion as I did in Mr Pirini's case. 72I do not propose to set a non-parole period for the affray sentence as there would be no utility in doing so. I made some remarks about this concept when I sentenced Mr Pirini. Section 45 of the Crimes (Sentencing Procedure) Act 1999 does not authorise the reduction of an otherwise appropriate sentence. It simply provides for the setting of a sentence without the sentence having a non-parole period. 73Mr Webb submitted that I should find that there are special circumstances for imposing a longer parole and shorter non-parole period. The Crown did not oppose this course, although clearly it is a matter for me to determine in the exercise of my discretion. 74In my judgment there are special circumstances. The offender will require considerable assistance in re-establishing his life following parole release. Not only will there be the need to settle down with work and in his home and social life, but there is also the significant need for the psychological assistance identified in the report of Mr Tim Watson-Munro. It is significant that it is recommended that this assistance be provided now but also that it should continue for some time in the community. A longer period of supervision by a parole officer will be of benefit in this respect.

SENTENCE On each: Convicted Affray: Sentenced to a fixed term of imprisonment of 2 years 4 months. The sentence is to date from 12 August 2009 and expire on 11 December 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 12 February 2010. The offender will be eligible for release on parole upon the expiration of the non-parole period on 11 May 2013. The total term will expire on 11 September 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 9 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 9 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

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Cited By (4)