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Court of Criminal Appeal 16 May 2013

Abounader v R

[2013] NSWCCA 106

Assault & violencePublic order & justice offences
CRIMINAL LAW: SENTENCE APPEAL RIOT FIGHT BETWEEN WARRING MOTORCYCLE CLUBS GUILTY PLEA PARITY WHETHER JUSTIFIABLE SENSE OF GRIEVANCE

Citation: Abounader v R [2013] NSWCCA 106
Court: Court of Criminal Appeal, New South Wales
Date: 16 May 2013
Judges: Price J, Davies J, Barr AJ

Background

The appellant was a senior member of the Comancheros motorcycle club who pleaded guilty to riot under s 93(1)(b) of the Crimes Act 1900. The charge arose from a violent confrontation between Comancheros and Hell's Angels members at Sydney Airport on 22 March 2009, during which a man named Anthony Zervas was killed. The appellant held the rank of "road captain" and played a significant organisational role in mobilising fellow club members to attend the airport that day.

At the airport, the appellant chose not to pass through security screening because he was carrying a knife. He and a co-offender waited in the departure hall and were informed of an earlier affray near Gate 5 before joining the broader group as they moved to confront five Hell's Angels members waiting in the departure hall. The violence that followed resulted in Zervas's death.

The sentencing judge (Hulme J) imposed a six-year term of imprisonment with a four-year non-parole period. The appellant sought leave to appeal, arguing that the discount allowed for his guilty plea was insufficient and that a disparity with co-offenders gave rise to a justifiable sense of grievance.

  • Whether the 15 percent discount allowed for the appellant's guilty plea was adequate, given that the Crown had earlier rejected an offer to plead guilty.
  • Whether the appellant was entitled to the same 20 percent discount granted to co-offenders who had made earlier offers to plead guilty that were also rejected by the Crown.
  • Whether any disparity in sentence between the appellant and his co-offenders gave rise to a justifiable sense of grievance under the parity principle.

Decision

The Court of Criminal Appeal found no error in the sentencing judge's approach to the guilty plea discount. The appellant's solicitor offered a plea of guilty to riot approximately two weeks before the trial was due to commence. The Crown rejected that offer and the matter proceeded to trial, where the appellant ultimately pleaded guilty. The sentencing judge treated the offer as genuine and frank, and allowed a 15 percent discount accordingly.

The Court found that the key distinction between the appellant and his co-offenders lay in timing. Co-offenders Eken, Potrus and Kisacanin had each made written offers to plead guilty approximately six months before the appellant's offer was made. The Court noted that those early approaches were made at a point in time when the prosecution had not yet fully invested its resources in preparing for a lengthy six-month trial. The appellant's offer, by contrast, came only two weeks before trial, by which point significant preparation had already occurred.

On the parity argument, the Court confirmed the applicable principle from Green v The Queen [2011] HCA 49: a co-offender may have a justifiable sense of grievance if sentenced more harshly than another in materially similar circumstances. The Court found, however, that the different timing of the respective plea offers was a material distinction that justified the difference in discount. The sentencing judge's discrimination between the appellant and his co-offenders fell within the proper exercise of the sentencing discretion.

The appeal was dismissed.

Orders Made

  • Leave to appeal against the sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the timing of a guilty plea offer is a material factor when assessing the appropriate discount, even where the Crown has rejected the offer.
  • A 15 percent discount was held to be squarely within the accepted range for a plea offered two weeks before trial, notwithstanding that the Crown had declined to accept it.
  • No justifiable sense of grievance arose from the parity principle where co-offenders who received greater discounts had made their plea offers approximately six months earlier, before substantial trial preparation had been undertaken.
  • In dismissing the appeal, the Court emphasised the significance of the resources already expended by prosecuting authorities by the time a late plea offer is made.
  • Under the parity principle, differences in sentencing outcomes between co-offenders can be justified by differences in the circumstances of their plea conduct, including when and how offers were communicated to the Crown.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93(1)(b) (riot)

Cases:
- Green v The Queen [2011] HCA 49
- Jimmy v R [2010] NSWCCA 60
- Khan v R [2012] NSWCCA 132
- R v Eken; R v Potrus [2012] NSWSC 2
- R v Kisacanin [2012] NSWSC 91
- Tatana v R [2006] NSWCCA 398