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Supreme Court 13 March 2015

R v Hawi

[2015] NSWSC 206

Assault & violenceHomicide
CRIMINAL LAW SENTENCE MANSLAUGHTER PLEA OF GUILTY OFFENCE OBJECTIVELY SERIOUS FAVOURABLE SUBJECTIVE CASE

Citation: R v Hawi [2015] NSWSC 206
Court: Supreme Court of New South Wales
Date: 13 March 2015
Judge(s): Hoeben CJ at CL

Background

The national president of the Comancheros motorcycle club was sentenced for manslaughter arising from a violent brawl between the Comancheros and the Hells Angels at Sydney Airport's Terminal 3 on 22 March 2009. The victim, the brother of a Hells Angels member, died from a combination of severe blunt force head injuries and stab wounds sustained during the melee. He was not killed by the offender directly, but by another member of the Comancheros who struck him with a heavy bollard.

The offender had originally been convicted of murder at trial in November 2011 and sentenced to 28 years imprisonment with a 21-year non-parole period. The Court of Criminal Appeal quashed that conviction in May 2014 and ordered a retrial. The offender had first offered to plead guilty to manslaughter approximately ten days before the murder trial commenced in 2011, but the Crown rejected that offer at the time. The plea was renewed in June 2014 and accepted by the DPP in July 2014, with the offender formally entering his guilty plea in September 2014.

By the time of sentencing, the offender had already served approximately five years and forty days in maximum security custody, together with a period on bail subject to strict conditions including daily reporting, a nightly curfew, and non-association orders.

  • Whether the offence of manslaughter, committed as part of a joint criminal enterprise to engage in an unlawful and dangerous act, was objectively serious enough to warrant a significant custodial sentence
  • What weight should be given to the offender's subjective circumstances, including his history, the conditions of his pre-sentence custody and bail, and evidence of rehabilitation
  • What discount applied to the sentence for the utility of the guilty plea, given that the plea was first offered before trial but only accepted years later
  • Whether the sentence should be backdated to the date of the original remand in custody
  • Whether special circumstances existed to justify adjusting the ratio between the non-parole period and the balance of term
  • How the parity principle applied given sentences already imposed on co-offenders involved in the same incident

Decision

Hoeben CJ at CL found the offence objectively serious. The offender, as national president of the Comancheros, played a central role in the joint criminal enterprise: he initiated the confrontation, called out threats after the first fight at Gate 5, and was part of the group that pursued Hells Angels members through the terminal. His participation in the enterprise that led directly to the victim's death made him criminally liable for manslaughter even though the fatal blow was struck by another.

The court identified several factors that bore on objective seriousness, including the organised and hierarchical nature of the Comancheros, the public setting crowded with bystanders (including elderly people and children), and the extreme violence of the attack. The court also noted mitigating factors: the victim had attempted to stab the offender in the head with scissors moments before the fatal melee erupted, the offender had a favourable subjective case, and there was evidence of genuine rehabilitation.

On the question of the plea discount, the court applied a 17.5 percent reduction. The court acknowledged the offer had been made before the lengthy and expensive five-month trial, but the accepted principle is that the utility of a plea is assessed by reference to the proceedings it actually avoids. Because the plea was ultimately entered before a retrial, it still carried substantial utilitarian value, warranting a meaningful though not maximum discount.

The court found special circumstances justifying a longer-than-standard balance of term relative to the non-parole period, given the somewhat unusual circumstances of the offender's situation. Applying the parity principle consistently with sentences imposed on co-offenders, the court accumulated the manslaughter sentence by six months on the earlier affray sentence.

Orders Made

  • Manslaughter: imprisonment with a non-parole period of 3 years and 6 months, commencing 16 November 2009 and expiring 15 May 2013, with a balance of term of 2 years and 8 months expiring 15 January 2016
  • The manslaughter sentence was accumulated by 6 months on the sentence for affray

Key Takeaways

  • Participation in a joint criminal enterprise to commit an unlawful and dangerous act can ground a manslaughter conviction even where the offender did not personally strike the fatal blow, provided the death occurred in the course of the enterprise.
  • A guilty plea discount reflects the utilitarian value of the proceedings actually avoided: where a plea is entered before a retrial rather than before the original trial, the discount is meaningful but not at the maximum rate that might apply had the plea been accepted when first offered.
  • The parity principle required the sentencing court to have close regard to sentences already imposed on co-offenders arising from the same incident, to avoid unjustifiable disparity.
  • Under section 44 of the Crimes (Sentencing Procedure) Act 1999, a court may find special circumstances to adjust the standard ratio between non-parole period and balance of term where the offender's circumstances warrant a longer supervisory period on parole.
  • Where a sentence of imprisonment exceeds three years, release to parole is a matter solely for the Parole Authority, not the sentencing court, as confirmed by reference to Muldrock v The Queen [2011] HCA 39 and Power v R [1974] HCA 26.

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), s 135(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 24(a), s 44

Cases:
- Hawi v R [2014] NSWCCA 83
- R v Hawi [2014] NSWSC 837
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Power v R [1974] HCA 26; 131 CLR 623
- Wilson v R [2008] NSWCCA 245
- Abdul-Kadir v R [2007] NSWCCA 329; 178 A Crim R 281
- Lavender v R [2006] NSWCCA 24
- R v Caroll; Caroll v R [2010] NSWCCA 55; 77 NSWLR 45
- R v Green [1999] NSWCCA 97
- R v Leete [2001] NSWCCA 337; 125 A Crim R 37
- R v Newman; R v Simpson [2004] NSWCCA 102; 145 A Crim R 361
- R v Menzies [2012] NSWSC 158
- R v Aouli [2011] NSWSC 1393
- R v Costa [2011] NSWSC 1392
- R v Pirini [2011] NSWSC 1395
- Wiggins v R [2010] NSWCCA 30