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Supreme Court 15 July 2011

R v Aouli

[2011] NSWSC 1393

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

Citation: R v Aouli [2011] NSWSC 1393
Court: Supreme Court of New South Wales
Date: 15 July 2011
Judge(s): Hulme J

Background

The offender was a full member of the Comanchero motorcycle club. On 22 March 2009, he was among a group of Comanchero members who flew from Melbourne to Sydney on a Qantas flight. By chance, the president of the rival Hells Angels club was on the same aircraft, and this encounter triggered a series of violent events inside the Qantas domestic terminal at Sydney Airport.

Two separate incidents of violence occurred. The first was an affray near Gate 5, where a group of Comanchero members chased and assaulted a Hells Angels member in front of members of the public, including children and elderly passengers. The second incident, moments later in the departure hall check-in area, was a larger melee involving approximately 12 Comanchero members against a smaller group of Hells Angels members and associates. During that second fight, Anthony Zervas died as a result of actions carried out by others in the group.

The offender pleaded guilty to both affray and manslaughter. His manslaughter liability rested on extended common purpose: by participating in a plan to intimidate Hells Angels members, he had contemplated the possibility that an unlawful and dangerous act would be committed that carried an appreciable risk of serious injury.

  • What sentence was appropriate for each of the offences of affray and manslaughter, having regard to the objective seriousness of the conduct?
  • What weight should be given to the offender's plea of guilty and his favourable subjective circumstances?
  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act 1999 to justify a reduction in the proportion of sentence represented by the non-parole period.
  • Whether the sentence should be structured so as to produce parole entitlement rather than parole eligibility, by backdating and reducing it to account for time already served.
  • Whether the sentence was proportionate and consistent with those imposed on co-offenders (parity).

Decision

Hulme J found the objective seriousness of the manslaughter to be significant. The violence was premeditated to the extent that members were called to attend the airport specifically to confront the Hells Angels. The offender held a subordinate role compared to leaders such as Mahmoud Hawi, and there was no evidence he personally struck or killed the deceased. He was, however, present and at the front of the group as it advanced on the Hells Angels in the departure hall, and he had made telephone calls to summon additional Comanchero members before and during the events.

The offender's plea of guilty was given meaningful weight. The court reduced the affray sentence from a notional 2 years 9 months to 2 years 5 months, and the manslaughter sentence from a notional 6 years 6 months to 5 years 8 months. The court also took into account the offender's stable employment history, lack of prior serious criminal record, and his personal and family circumstances, all of which were regarded as favourable subjective factors.

Hulme J accepted that special circumstances existed, principally because the offender would need a meaningful period on parole to rebuild social connections away from his former Comanchero associates. The court declined, however, to structure the sentence so as to produce an automatic parole entitlement rather than parole board eligibility. The court held that transparency and openness as to the seriousness of the offending required a sentence that was not artificially adjusted for that purpose.

Orders Made

  • Affray: Convicted and sentenced to a fixed term of 2 years 5 months imprisonment, commencing 27 March 2009 and expiring 26 August 2011.
  • Manslaughter: Convicted and sentenced to imprisonment with a non-parole period of 3 years and a balance of term of 2 years 8 months, commencing 27 September 2009. Eligible for parole on 26 September 2012; total term expiring 26 May 2015.
  • Total effective sentence: 6 years 2 months, with a non-parole period of 3 years 6 months.

Key Takeaways

  • Extended common purpose liability for manslaughter does not require proof that the offender personally inflicted fatal injuries; participation in a joint enterprise to intimidate, where serious injury is a contemplated possibility, is sufficient for guilt.
  • A guilty plea attracted a meaningful discount to sentence, reducing the manslaughter head sentence by approximately one month short of a year off the notional starting point.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be established where reintegration challenges, including the need to sever ties with criminal associates, would make the standard non-parole proportion inadequate.
  • Hulme J declined to manipulate the sentence structure to convert parole eligibility into parole entitlement, treating transparency about the gravity of the offending as a countervailing consideration of sufficient weight.
  • The subordinate role of an offender within a hierarchical criminal organisation is a relevant mitigating factor on sentence, even where that offender was present throughout the incident and took active steps such as summoning additional members to the scene.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 24 (manslaughter), s 93C (affray)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45 (fixed terms and non-parole periods)

Cases: No cases were cited in the portions of the judgment provided.