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Supreme Court 26 July 2011

R v Costa

[2011] NSWSC 1392

Assault & violenceHomicidePublic order & justice offences
CRIMINAL LAW SENTENCE MANSLAUGHTER AND AFFRAY DETERRENCE AND DENUNCIATION PLEA OF GUILTY FAVOURABLE SUBJECTIVE CASE

Citation: R v Costa [2011] NSWSC 1392
Court: Supreme Court of New South Wales
Date: 26 July 2011
Judge(s): Hulme J

Background

The offender was a member of the Comanchero motorcycle club and held the position of secretary, responsible for collecting membership fees. On 22 March 2009, he attended Sydney Airport after Comanchero members travelling from Melbourne spotted the president of the rival Hells Angels on their flight and summoned Sydney members to the airport.

What followed was a two-stage violent confrontation. First, at Gate 5 inside the terminal, Comanchero members assaulted two Hells Angels members in front of passengers, including children and elderly people. The offender was involved in scuffles during this phase, though there was no evidence he kicked or punched the victim while he was on the ground. Minutes later, the twelve Comanchero members moved quickly through the departure hall toward five waiting Hells Angels members, and a broader brawl erupted. During that second fight, Anthony Zervas, the brother of a Hells Angels member, was killed.

The offender was not alleged to have struck any blows in the departure hall fight. He was nevertheless guilty of manslaughter on the basis of joint criminal enterprise: he was willing to assist in assaulting one or more Hells Angels members and acknowledged the assault carried an appreciable risk of serious injury.

  • What sentence was appropriate for manslaughter committed as a party to a joint criminal enterprise where the offender did not personally inflict fatal blows?
  • What weight should be given to the offender's plea of guilty, favourable subjective circumstances, and lack of prior criminal record?
  • How should parity principles apply, given that several co-offenders had already been sentenced?
  • Were there special circumstances justifying a reduction in the proportion of the sentence to be served as a non-parole period?

Decision

Hulme J identified deterrence and denunciation as the primary sentencing considerations. The offence of manslaughter during a premeditated gang confrontation in a busy public space, involving weapons including 12-kilogram metal bollards, was of the utmost seriousness. The fact that the offender did not personally inflict fatal violence was relevant, but did not diminish his role as a willing participant in the joint enterprise.

On parity, the judge took the sentences imposed on co-offender Mr Pirini as the appropriate starting point. The offender's position in the club hierarchy (secretary) and his role in the events were comparable. A feature present in the cases of two other co-offenders, namely that they had been on conditional liberty at the time, was absent here, which meant Mr Pirini's starting points were the closer comparison. The final sentence was higher than Mr Pirini's because the offender's plea of guilty came later and attracted a smaller discount.

The plea of guilty was given meaningful weight. The sentence for manslaughter was reduced from a starting point of 7 years 6 months to 6 years 7 months to reflect the plea. The affray sentence was similarly reduced from 2 years 8 months to 2 years 4 months.

Hulme J found special circumstances warranting a longer-than-standard parole period. The offender was entering full-time imprisonment for the first time, and an extended period of supervision by the Probation and Parole Service was considered appropriate to assist his reintegration, address substance use, and reduce the risk of recontact with former Comanchero associates.

Orders Made

  • Affray (s 93C, Crimes Act 1900): Convicted. Fixed term of 2 years 4 months imprisonment, dating from 4 July 2009, expiring 3 November 2011.
  • Manslaughter (ss 18 & 24, Crimes Act 1900): Convicted. Non-parole period of 3 years 3 months, balance of term 3 years 4 months, dating from 4 January 2010. Eligible for parole 3 April 2013; total term expires 3 August 2016.
  • Total sentence: 7 years 1 month, with a non-parole period of 3 years 9 months.
  • Pre-sentence custody credited from 4 July 2009.

Key Takeaways

  • Participation in a joint criminal enterprise to assault rival gang members can ground a manslaughter conviction even where the offender did not personally deliver fatal blows, provided the enterprise carried an appreciable risk of serious injury.
  • The parity principle required Hulme J to treat the sentences of already-sentenced co-offenders as benchmarks, with adjustments made to account for differences in each offender's role, circumstances, and the timing of their guilty plea.
  • A late guilty plea still attracts a discount, though a smaller one than an early plea: the manslaughter sentence was reduced by approximately 12 months from the starting point to reflect the plea's utilitarian value.
  • Special circumstances were established where an offender would be serving their first term of full-time imprisonment, justifying a longer parole period to support supervised reintegration and break ties with criminal associates.
  • Sentencing for gang violence in public spaces attracted particular emphasis on general deterrence and denunciation, reflecting the terror caused to uninvolved members of the public, including children and elderly passengers at the airport.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93C (affray, maximum 10 years imprisonment)
- Crimes Act 1900 (NSW), ss 18 and 24 (manslaughter, maximum 25 years imprisonment)

Cases:
No specific cases were cited in the portions of the judgment provided. The judgment refers to the sentencing of co-offenders, including Mr Pirini, Mr La Rosa, and Mr Aouli, as relevant parity comparisons, but formal citations for those proceedings were not included in the available text.