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Supreme Court 20 December 2002

R v Eleter

[2002] NSWSC 1224

Assault & violenceHomicidePublic order & justice offences
SENTENCING AFFRAY ACT TO PERVERT THE COURSE OF JUSTICE YOUNG OFFENDER

Citation: R v Eleter [2002] NSWSC 1224
Court: Supreme Court of New South Wales
Date: 20 December 2002
Judge(s): Dunford J

Background

Five offenders were sentenced following a violent incident on 3 November 2000 that resulted in the death of a man at a Bankstown brothel. The events stemmed from a fistfight earlier that afternoon between Tony Eleter and a man named Dib. When Michael Eleter, Tony's older brother, learned of the fight and saw Tony's injuries, pre-existing animosity toward Dib intensified and a group formed to pursue him.

That evening, several members of the Eleter family and a juvenile offender (referred to as JO, whose name is suppressed by statute) drove to the brothel where Dib was located. A confrontation developed in the front yard, and Michael Eleter fired ten shots through the front windows of the premises. A man inside the front office, Victor Zaccak, was struck by one bullet and died almost immediately. Michael Eleter pleaded guilty to murder on the basis of reckless indifference to human life.

The remaining accused pleaded guilty to affray. JO later also pleaded guilty to acting with intent to pervert the course of justice, having arranged for at least three people to provide police with false alibi statements placing him elsewhere at the time of the shooting.

  • The appropriate sentence for Michael Eleter for murder, with an aggravated armed robbery charge taken into account on a Form 1
  • The appropriate sentences for Tony Eleter, George Eleter and Youssef Eleter for affray
  • The appropriate sentence for JO, a young offender, for both affray and acting with intent to pervert the course of justice
  • The weight to be given to youth, guilty pleas, pre-sentence custody and other mitigating and aggravating factors across all offenders

Decision

Dunford J sentenced Michael Eleter for murder, taking into account the aggravated armed robbery on a Form 1. The murder was treated as serious: Michael Eleter was armed, fired ten shots at an occupied building, and a bystander was killed. The plea of guilty on the basis of reckless indifference to human life, rather than intent to kill, was nonetheless a significant plea warranting some leniency. His youth and prior criminal history were also weighed.

For the affray charges, Dunford J observed that Tony, George and Youssef Eleter had each participated in a threatening group confrontation at the brothel, with Tony striking the brothel owner. The sentences for affray were modest given the circumstances, including guilty pleas and time already served in pre-sentence custody, resulting in terms that allowed early parole eligibility.

JO presented as a young offender whose age at the time of the offences brought the Children (Criminal Proceedings) Act 1987 into play regarding publication of his identity. For affray, his sentence was structured to be served by way of periodic detention. For the perverting of justice charge, the court took a more lenient approach, imposing a good behaviour bond with supervision conditions, reflecting his youth and the range of matters before the court.

Across all offenders, the court weighed the seriousness of the underlying event, the roles each individual played, the discount available for early guilty pleas, periods of pre-sentence custody, and the personal circumstances of each offender including age and background.

Orders Made

  • Michael Eleter: sentenced to a term of imprisonment for murder, with a non-parole period (the precise figures are not reproduced in the text excerpt provided, though the earliest parole eligibility date is noted as 14 October 2003)
  • Tony Eleter: sentenced to 16 months imprisonment for affray, commencing 16 May 2002, with a 12-month non-parole period; eligible for parole from 15 May 2003
  • George Eleter: sentenced to 16 months imprisonment for affray, commencing 20 July 2002, with a 12-month non-parole period; eligible for parole from 19 July 2003
  • JO (affray): sentenced to 12 months imprisonment with a 9-month non-parole period, to be served by periodic detention at Silverwater, commencing 2 January 2003
  • JO (pervert the course of justice): convicted and ordered to enter a 3-year good behaviour bond with supervision by the Probation and Parole Service and reporting conditions
  • Outstanding charges against JO remitted to the Children's Court at Bidura, with a recommendation that no further action be taken
  • All prisoners except Michael Eleter to be released at the expiration of their non-parole periods, subject to prescribed conditions

Key Takeaways

  • A guilty plea to murder on the basis of reckless indifference to human life, rather than intent to kill, remains a serious matter but may attract a degree of leniency in sentencing when accompanied by an early plea and other relevant personal factors.
  • Under the Children (Criminal Proceedings) Act 1987, s 11, publication of the name of an offender who was under 18 at the time of the offences is prohibited, and this restriction applied to JO throughout these proceedings.
  • Where multiple offenders participate in a group confrontation resulting in death, their individual culpability is assessed separately: those convicted only of affray received substantially shorter sentences than the principal offender convicted of murder.
  • Periodic detention was available as a sentencing option for a young offender convicted of affray, and a good behaviour bond was considered appropriate for the perverting of justice charge when weighed against youth and all surrounding circumstances.
  • Form 1 procedure under the Crimes (Sentencing Procedure) Act 1999, s 32 allows additional offences (here, aggravated armed robbery) to be taken into account when sentencing for a principal offence, without a separate conviction being recorded for those additional matters.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987, s 11
- Crimes (Sentencing Procedure) Act 1999, ss 21A, 32 and 44
- Crimes Act 1900, ss 93B, 93C, 93D and 319
- Criminal Procedure Act 1986, s 36

Cases:
- The Queen v De Simoni (1981) 147 CLR 383
- R v Qutami [2001] NSWCCA 353
- R v Palu [2002] NSWCCA 381
- R v Niketic [2002] NSWCCA 425
- R v Huynh [2000] NSWCCA 18
- R v Atholwood (1999) 109 A Crim R 465
- R v Ainsworth (1994) 76 A Crim R 127
- R v Hearne [1999] NSWSC 605
- R v Huynh & Phung [2001] NSWSC 357
- R v Townsend & Copper (NSWCCA, unreported, 14 February 1995)
- R v Pham (1991) 55 A Crim R 128
- R v XYJ (NSWCCA, unreported, 15 June 1992)
- R v GDP (1991) 53 A Crim R 112
- R v Harris (2001) 125 A Crim R 27
- R v Bavadra (2000) 115 A Crim R 152
- R v Lemene (2001) 118 A Crim R 131