Citation: R v Menzies [2012] NSWSC 158
Court: Supreme Court of New South Wales
Date: 2 March 2012
Judge: R A Hulme J
Background
This decision concerned the sentencing of a Comancheros outlaw motorcycle gang member following events at the Qantas domestic terminal at Sydney Airport on 22 March 2009. A chance encounter on a flight from Melbourne between the national presidents of the Comancheros and the Hells Angels triggered a series of violent confrontations. Both club leaders summoned members to the airport before the plane landed, setting the scene for what followed.
Two separate incidents occurred. The first was a violent confrontation near Gate 5, where members of the Comancheros vastly outnumbered and assaulted two Hells Angels members in front of passengers including children and elderly travellers. The second was a broader riot in the departure hall, which involved all-in fighting using improvised weapons and culminated in the death of Anthony Zervas, a brother of one of the Hells Angels members present.
The offender, a Comancheros member, was tried alongside six co-accused. A jury convicted him of affray arising from the Gate 5 incident and was unable to reach a verdict on manslaughter arising from the departure hall riot. The offender subsequently pleaded guilty to manslaughter on 2 December 2011.
Legal Issues
- What sentence was appropriate for the affray conviction, taking into account the offender's role in a violent public confrontation involving rival outlaw motorcycle gangs?
- What sentence was appropriate for the manslaughter conviction, having regard to the nature of the riot, the offender's specific participation, the objective seriousness of the offence, and the late plea of guilty?
- How should the sentence reflect parity with co-offenders sentenced in related proceedings?
- Whether special circumstances existed justifying a longer than usual parole period.
Decision
On the affray charge, Hulme J imposed a fixed term of three years, noting the significant public nature of the violence at a busy airport terminal. The offender was part of a group that overwhelmingly outnumbered its targets and the incident caused considerable fear among bystanders.
On manslaughter, the court assessed the offender's role carefully against that of his co-offenders. While the offender was not identified as a principal in the killing itself, he was part of the group of twelve Comancheros who advanced toward the smaller group of Hells Angels in the departure hall, knowing the context of the earlier Gate 5 violence. The court found he contemplated that an unlawful and dangerous assault might occur but did not play an active role in the fatal events. His objective criminality was nonetheless significant, given the gang context, the vulnerability of the victim, and the public setting.
Hulme J reduced the manslaughter sentence from a notional eight years and six months to seven years and two months to reflect the guilty plea, which was entered after a lengthy trial. The court also noted a favourable subjective case, including matters relevant to rehabilitation, and accepted that the offender's criminal history and prior conditional liberty status distinguished him from some co-offenders in a less favourable direction.
The court found special circumstances, accepting that a longer period of post-release supervision was warranted to support the offender's reintegration, address substance use issues, and ensure continued distance from outlaw motorcycle gang activity.
Orders Made
- Affray: Fixed term of imprisonment of 3 years, commencing 27 March 2009 and expiring 26 March 2012.
- Manslaughter: Non-parole period of 3 years and 8 months, with a balance of term of 3 years and 6 months, commencing 27 September 2009. Parole eligibility from 26 May 2013, with the total sentence expiring 26 November 2016.
- Aggregate term: 7 years and 8 months, with a minimum of 4 years and 2 months to be served before parole eligibility.
Key Takeaways
- Participation in a joint criminal enterprise involving rival outlaw motorcycle gang violence in a public place, even without direct infliction of the fatal blow, can ground a manslaughter conviction and a substantial custodial sentence.
- A late guilty plea entered after a lengthy trial still attracted a sentencing discount, with the court reducing the manslaughter head sentence from 8 years 6 months to 7 years 2 months.
- Parity with co-offenders required close analysis of each participant's role, criminal history, and subjective circumstances. The Supreme Court examined prior sentences imposed on related offenders (Eken, Potrus, Kisacanin, Pirini, and others) to arrive at an appropriately consistent outcome for this offender.
- Special circumstances were established where a longer parole period was needed to supervise reintegration, manage substance use risks, and monitor ongoing separation from outlaw motorcycle gang involvement.
- Under the sentencing framework applied, the hierarchical and coercive culture of an outlaw motorcycle gang, including the enforcement of loyalty norms and the directions of a national president with "absolute power," formed part of the relevant factual context, though the court assessed each offender's individual culpability separately.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 18, 24 (manslaughter), s 93C (affray)
Cases:
- R v Eken; R v Potrus [2012] NSWSC 91
- R v Kisacanin [2012] NSWSC 2
- R v Pirini [2011] NSWSC 1395