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Supreme Court 24 June 2011

R v La Rosa

[2011] NSWSC 1394

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

Citation: R v La Rosa [2011] NSWSC 1394
Court: Supreme Court of New South Wales
Date: 24 June 2011
Judge(s): Hulme J

Background

The offender, Francesco La Rosa, was a treasurer of the Comanchero motorcycle club at the time of the offences. On 22 March 2009, a confrontation erupted at Sydney's Qantas domestic terminal between members of the Comanchero and the Hells Angels, after both groups converged on the airport following a chance encounter on an inbound Melbourne flight.

La Rosa pleaded guilty to two offences. The first was affray, arising from a violent assault on a Hells Angels member near Gate 5 of the terminal. The second was manslaughter, arising from a subsequent brawl in the departure hall check-in area during which Anthony Zervas died from blunt force injuries and stab wounds.

La Rosa was not alleged to have personally struck anyone during the check-in area brawl, nor to have been directly involved in the attack on the deceased. His liability for manslaughter rested on his participation in a joint criminal enterprise to assault Hells Angels members, which objectively carried an appreciable risk of serious injury to someone.

  • What sentence was appropriate for the affray and manslaughter offences, having regard to objective seriousness and subjective circumstances?
  • What weight should be given to the guilty plea and other mitigating factors?
  • Whether a non-parole period should be set for the affray sentence, where a fixed term was being imposed.
  • Whether special circumstances existed to justify a longer parole period and shorter non-parole period for the manslaughter sentence.
  • Whether the sentence should reflect parity with sentences imposed on co-offenders.

Decision

Hulme J treated the offending as serious. The brawl occurred in a busy public terminal in front of civilians, including children and elderly people, who were terrified by what they witnessed. The Comanchero members, rather than leaving the terminal after the Gate 5 affray, deliberately advanced toward the Hells Angels in the departure hall to continue the confrontation at greater numerical advantage. The objective gravity of both offences was significant.

On subjective matters, the court accepted a favourable case: La Rosa had no prior criminal history, had cooperated with police in limited respects, had family support, and psychological evidence indicated a need for ongoing therapeutic assistance. His guilty plea attracted a discount on both sentences.

Hulme J declined to set a non-parole period for the affray sentence, which was imposed as a fixed term. His Honour reiterated the principle, noted when sentencing a co-offender, that a fixed-term sentence under s 45 of the Crimes (Sentencing Procedure) Act 1999 does not authorise any reduction of an otherwise appropriate sentence; the provision simply permits a sentence to be structured without a non-parole period, not to produce a more lenient outcome.

The court found special circumstances existed for the manslaughter sentence. La Rosa would require significant psychological assistance upon release, as identified in expert evidence, and a longer period of community supervision was considered beneficial for his rehabilitation and reintegration.

Orders Made

  • Affray: Convicted and sentenced to a fixed term of 2 years 4 months, commencing 12 August 2009 and expiring 11 December 2011. (Sentence without the guilty plea discount would have been 2 years 9 months.)
  • Manslaughter: Convicted and sentenced to 6 years 7 months, comprising a non-parole period of 3 years 3 months commencing 12 February 2010, with a balance of term of 3 years 4 months. Eligible for parole on 11 May 2013; total term expiring 11 September 2016. (Sentence without the guilty plea discount would have been 7 years 9 months.)
  • Total effective sentence: 7 years 1 month with a non-parole period of 3 years 9 months.

Key Takeaways

  • Under s 45 of the Crimes (Sentencing Procedure) Act 1999, the imposition of a fixed term without a non-parole period does not authorise any reduction of the sentence that would otherwise be appropriate; it is a structural sentencing tool only.
  • Participation in a joint criminal enterprise to assault others can ground a manslaughter conviction where the enterprise objectively carried an appreciable risk of serious injury, even without direct personal involvement in the fatal attack.
  • Special circumstances justifying a longer parole period were established where expert psychological evidence demonstrated an ongoing need for therapeutic support, both in custody and continuing in the community after release.
  • Parity with co-offenders was a relevant consideration in determining the appropriate sentence, consistent with its treatment in related proceedings against other Comanchero members.
  • A guilty plea attracted a meaningful sentencing discount: the manslaughter head sentence was reduced from 7 years 9 months to 6 years 7 months, and the affray sentence from 2 years 9 months to 2 years 4 months.

Legislation and Cases Referenced

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

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