Citation: R v Kisacanin [2012] NSWSC 91
Court: Supreme Court of New South Wales
Date: 17 February 2012
Judge: R A Hulme J
Background
The offender was a nominee member of the Comancheros motorcycle gang who travelled to Sydney's Qantas domestic terminal on 22 March 2009 after being summoned by senior club members. The occasion was an unplanned encounter between the Comancheros and rival gang the Hells Angels, whose president happened to be on the same flight as the Comanchero national president.
Two separate violent incidents unfolded. The first, an affray, occurred near Gate 5 when arriving Comanchero members assaulted a Hells Angels member after passengers disembarked. The second, a riot, erupted shortly afterwards in the departure hall when the now-combined group of twelve Comancheros advanced toward five waiting Hells Angels members, with fatal consequences for one participant.
The offender was tried alongside six co-accused in a protracted trial that ran from May to November 2011. The jury acquitted him of murder and manslaughter but convicted him of both riot (maximum 15 years under s 93B of the Crimes Act 1900) and affray (maximum 10 years under s 93C). The sentencing judgment addresses the appropriate penalties for those two offences.
Legal Issues
- What sentence was appropriate for riot and affray in the context of a premeditated, gang-related violent confrontation in a public place?
- What weight should be given to the offender's offer to plead guilty to the charged offences, where that offer was rejected by the prosecution?
- Whether special circumstances existed to justify a variation in the standard ratio between non-parole period and total sentence (that is, the minimum time to be served before eligibility for parole, compared with the overall sentence length).
- How parity with co-offenders should be maintained, given varying levels of involvement and differing mitigating factors across the group.
Decision
Hulme J characterised both offences as serious examples of their kind. The riot in the departure hall involved a large group of gang members advancing on and attacking their rivals in a busy public terminal, resulting in the death of one Hells Angels member (though the offender himself was acquitted of the homicide charges). The affray at Gate 5 involved a violent assault witnessed by members of the public including children and elderly people, causing widespread fear and distress. His Honour found that the offender, as a nominee member bound by strict gang rules prohibiting cowardice, was aware when attending the airport that violence was a real possibility.
The offender had offered to plead guilty to both charges approximately six months before trial, but the prosecution declined that offer in the context of the broader case. Hulme J accepted that the offer was genuine and reduced the sentences from their assessed starting points to reflect it, treating it as equivalent to a discount for a guilty plea. The reduction was applied to the affray sentence (from 2 years 9 months to 2 years 2 months) and the riot sentence (from 6 years to 4 years 9 months).
Comparing the offender with co-offenders Eken and Potrus, Hulme J found the offender compared more favourably when the combined mitigating factors of prior record, remorse, and rehabilitation prospects were weighed. His Honour found special circumstances existed, justifying a longer than usual parole period relative to the total sentence, to support the offender's rehabilitation and reintegration.
A modest degree of accumulation between the two sentences was appropriate because the offences, though closely connected in time and setting, were distinct events occurring in different parts of the terminal.
Orders Made
- Affray: Fixed term of imprisonment of 2 years 2 months, commencing 3 June 2009 and expiring 2 August 2011.
- Riot: Non-parole period of 2 years 8 months, with a balance of term of 2 years 1 month, commencing 3 December 2009; eligible for release on parole on 2 August 2012; total term expiring 2 September 2014.
- Aggregate term: 5 years 3 months, with a minimum period of 3 years 2 months before parole eligibility.
Key Takeaways
- A genuine offer to plead guilty, rejected by the prosecution before trial, can still attract a sentencing discount comparable to a guilty plea discount, provided the court is satisfied the offer was genuine and related to the offences ultimately prosecuted.
- Riot and affray charges arising from the Sydney Airport gang confrontation were treated by the Supreme Court as serious examples of those offences, warranting substantial custodial sentences notwithstanding acquittals on the more serious homicide charges.
- Parity principles required Hulme J to calibrate each co-offender's sentence by reference to the others, with differences in prior record, remorse, and rehabilitation prospects justifying differentiation within the group.
- Special circumstances (within the meaning of the sentencing legislation) can be established where an offender's rehabilitation prospects and reintegration needs warrant a longer-than-standard parole period relative to the total sentence length.
- Gang membership rules that compel loyalty and punish cowardice were treated as relevant to the offender's culpability, informing the court's assessment of his state of mind when attending the airport and participating in the events that followed.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 93B (riot) and 93C (affray)
Cases
- R v Aouli [2011] NSWSC 1393
- R v Costa [2011] NSWSC 1392
- R v Eken; R v Potrus [2012] NSWSC 2
- R v La Rosa [2011] NSWSC 1394
- R v Pirini [2011] NSWSC 1395