Citation: R v Abounader [2012] NSWSC 1312
Court: Supreme Court of New South Wales
Date: 26 October 2012
Judge: R A Hulme J
Background
On 22 March 2009, a violent brawl erupted between members of the Comancheros and Hells Angels motorcycle gangs in the departure hall of Terminal 3 at Sydney Kingsford-Smith Airport. The clash left one man dead and resulted in criminal proceedings against 15 individuals. The offender held the office of "road captain" within the Comancheros and was among those who drove to the airport after being contacted by club members returning on a flight from Melbourne.
The offender was charged with both riot and murder. Following a lengthy trial, the jury acquitted him of murder in November 2011 and could not reach a verdict on the alternative charge of manslaughter. A retrial on manslaughter was subsequently listed, but the Crown ultimately resolved to take no further proceedings on that charge. On 24 August 2012, the offender pleaded guilty to riot under s 93B of the Crimes Act 1900.
The sentencing proceedings required the court to assess the objective seriousness of the offence, consider the offender's role in the riot, and ensure the sentence was appropriately consistent with those imposed on co-offenders.
Legal Issues
- What was the appropriate sentence for riot under s 93B of the Crimes Act 1900, which carries a maximum penalty of 15 years imprisonment?
- How should the court characterise the offender's role in the riot, including his conduct of remaining outside the security screening area while armed with a knife?
- What weight should be given to the negotiated guilty plea, entered after an acquittal for murder and a hung jury on manslaughter?
- How should parity with co-offenders be maintained in determining the sentence?
- How should pre-sentence custody be calculated and applied?
Decision
Hulme J described the airport riot as a serious example of the offence. The Comancheros arrived at the airport in coordinated fashion after being summoned by club leadership, having first met with senior club members before proceeding to the terminal. The offender played an organisational role, contacting eight other members by phone after being alerted to the situation. He remained outside the security screening area because he was carrying a knife he knew would be detected, and he signalled to other members during the incident.
His Honour found that the offender and co-offender Potrus, while not present at the initial affray near Gate 5, were informed of it by phone and joined the group as it moved toward the waiting Hells Angels members in the departure hall. The court had previously concluded, when sentencing other offenders, that the Comancheros deliberately walked toward the Hells Angels rather than heading for the nearest exit, though the court did not treat this as a matter definitively resolved against the offender.
On the question of the guilty plea, the court acknowledged it was a negotiated plea entered after the most serious charges had either been resolved by acquittal or abandoned by the Crown. This limited the discount available compared to an early plea. The court also considered the offender's personal circumstances and the need for the sentence to bear an appropriate relationship to the objective seriousness of the offence, while maintaining parity with co-offenders sentenced in earlier proceedings.
The court backdated the sentence to account for pre-sentence custody from 3 July 2009 to 4 May 2012, treating 24 December 2009 as the commencement date of the sentence. Before pronouncing the sentence, Hulme J made an unusual observation commending the investigating police for their professionalism, noting the extraordinary difficulties of the investigation including the unprecedented suppression of civilian witnesses' identities even from defence lawyers.
Orders Made
- The offender was convicted of riot.
- Sentenced to a total term of 6 years imprisonment, comprising a non-parole period of 4 years and a balance of term of 2 years.
- Sentence backdated to commence 24 December 2009.
- The offender became eligible for parole on 23 December 2013, with the total term expiring on 23 December 2015.
- The court noted that without the guilty plea the sentence would have been 7 years.
Key Takeaways
- A riot arising from a coordinated, gang-related confrontation in a public place, resulting in a fatality, was treated as a serious example of the offence under s 93B of the Crimes Act 1900, warranting a substantial custodial sentence even for an offender who was not the principal aggressor.
- Remaining outside the security screening area while carrying a knife, and signalling to other participants, was treated as a meaningful contribution to the riot even in the absence of direct physical violence by that offender.
- Where a guilty plea is entered only after an acquittal on more serious charges and the abandonment of an alternative charge by the Crown, the sentencing discount available for the plea is more limited than it would be for an early plea at the outset of proceedings.
- Parity with co-offenders was a significant consideration, with the court cross-referencing the sentences imposed in R v Eken; R v Potrus and R v Kisacanin to ensure consistency across the group of offenders.
- Pre-sentence custody of approximately two and a half years was taken into account by backdating the sentence commencement date rather than by reducing the head sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 93B (riot, maximum penalty 15 years imprisonment)
Cases:
- R v Eken; R v Potrus [2012] NSWSC 2
- R v Kisacanin [2012] NSWSC 91