Citation: R v Eken; R v Potrus [2012] NSWSC 2
Court: Supreme Court of New South Wales
Date: 9 January 2012
Judge: R A Hulme J
Background
Two members of the Comancheros motorcycle gang were sentenced for their roles in a riot at the Qantas domestic terminal at Sydney Airport on 22 March 2009. The riot followed a confrontation between Comanchero and Hells Angels members that had been set in motion during a shared flight from Melbourne to Sydney. Both offenders had been summoned to the airport in anticipation of a violent encounter with the rival gang.
A jury found both men not guilty of murder and manslaughter, but convicted each of riot under s 93B of the Crimes Act 1900, which carries a maximum penalty of 15 years imprisonment. One of the two was also acquitted of a separate affray charge arising from an earlier fight near the departure gate.
The sentencing proceedings required the court to assess individual culpability in the context of a large group incident, account for the unusually long trial, and address the significance of offers to plead guilty that the Crown had declined to accept.
Legal Issues
- What was the appropriate sentence for riot, given the seriousness of the offence and the individual roles played by each offender?
- What weight should be given to offers of guilty pleas that were rejected by the prosecution?
- Whether special circumstances existed to justify adjusting the ratio between the non-parole period and the balance of the sentence.
- How to achieve parity with sentences imposed on co-offenders, including those dealt with for affray or manslaughter arising from the same incident.
Decision
Hulme J characterised the riot as a serious offence falling below the worst-case category. The airport setting, the presence of members of the public including children, and the organised and gang-driven nature of the violence all aggravated the offending. The court noted that the Comancheros operated under strict hierarchical rules demanding loyalty and prohibiting cowardice, which provided important context for why both men attended the airport.
Both offenders had offered to plead guilty to riot before trial, but the Crown rejected those offers and proceeded on the more serious charges of murder and manslaughter, of which both were acquitted. Hulme J took the rejected guilty pleas into account as a mitigating factor. The total sentence he arrived at was 5 years, reduced from a starting point of 6 years and 3 months to reflect those offers.
The court found no meaningful distinction between the two offenders in terms of the seriousness of their participation or the weight of their subjective circumstances. Identical sentences were imposed, differing only in their commencement dates to reflect the different periods each had spent in custody.
On parity, Hulme J considered the sentences of co-offenders dealt with for affray and manslaughter arising from the same incident. He noted the difficulty of comparing sentences across different offences but concluded that the sentences imposed were consistent with appropriate proportionality across the group.
Orders Made
Eken:
- Convicted of riot
- Sentenced to 5 years imprisonment: non-parole period of 3 years, balance of term 2 years
- Sentence to date from 19 April 2009; eligible for parole on 18 April 2012
Potrus:
- Convicted of riot
- Sentenced to 5 years imprisonment: non-parole period of 3 years, balance of term 2 years
- Sentence to date from 14 July 2009; eligible for parole on 13 July 2012
Key Takeaways
- A Crown's rejection of a pre-trial offer to plead guilty to a lesser charge can constitute a relevant mitigating factor at sentencing if the accused is ultimately convicted of that lesser offence, and the court quantified that discount expressly here (reducing the sentence from 6 years 3 months to 5 years).
- Riot under s 93B of the Crimes Act 1900 carries a maximum of 15 years imprisonment; this case was treated as serious but not at the worst-case level, reflecting the importance of calibrating sentences across the full range of the offence.
- Where multiple co-offenders are sentenced for conduct arising from the same incident but under different charges, parity principles still require the sentencing court to maintain proportionality, even when direct comparison is difficult.
- The hierarchical and disciplinary structure of an organised criminal group can be a relevant aggravating factor, given that membership rules may have compelled or strongly pressured participation in the offending.
- Sentences for co-offenders dealt with in the Local Court for related lesser offences were given limited weight, given the jurisdictional ceiling on that court's sentencing power and the absence of detailed reasons from the magistrates.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 93B (riot)
Cases:
- R v Aouli [2011] NSWSC 1393
- R v Costa [2011] NSWSC 1392
- R v La Rosa [2011] NSWSC 1394
- R v Pirini [2011] NSWSC 1395