R v Pirini [2011] NSWSC 1395 (18 March 2011)

Last Updated: 23 November 2011

Supreme Court New South Wales

Case Title:	R v Pirini
Medium Neutral Citation:	[2011] NSWSC 1395
Hearing Date(s):	4 March 2011
Decision Date:	18 March 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Affray: Sentenced to a fixed term of imprisonment of 2 years 2 months. The sentence is to date from 17 June 2009 and expire on 16 August 2011. Manslaughter: Sentenced to imprisonment comprising a non-parole period of 3 years and a balance of the term of the sentence of 3 years. The sentence is to date from 17 December 2009. The offender will be eligible for release on parole upon the expiration of the non-parole period on 16 December 2012. The total term will expire on 16 December 2015.
Catchwords:	CRIMINAL LAW - sentence - manslaughter and affray - melee between rival motorcycle club members at airport - deterrence and denunciation - plea of guilty - favourable subjective case - special circumstances
Legislation Cited:	Crimes Act 1900 Criminal Case Conferencing Trial Act 2008 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
Texts Cited:
Category:	Sentence
Parties:	Regina Pomare Pirini
Representation
- Counsel:	Ms N Adams with Ms H Roberts (Crown) Mr J Stratton SC (Offender)
- Solicitors:	Solicitor for Public Prosecutions Bannisters Lawyers & Attorneys
File number(s):	2009/68873 & 2009/148413
Publication Restriction:

JUDGMENT

1. HIS HONOUR: On 16 December 2010 the offender, Pomare Pirini, pleaded guilty before Latham J to offences of affray and manslaughter. The offences are against s 93C and ss 18 & 24 respectively of the Crimes Act 1900 and the maximum penalties are imprisonment for 10 years and imprisonment for 25 years.

2. On 4 March 2011 I heard and received evidence and submissions on sentence before standing the matter over until today.

Facts

3. The matter concerns events in the Qantas domestic terminal at Sydney Airport on 22 March 2009 when there was conflict between members of two rival motorcycle clubs, the Hells Angels and the Comanchero. The offender has acknowledged that he was criminally concerned in an initial incident near Gate 5 of the terminal which gave rise to the charge of affray and that he was also concerned in a second incident a short time later near the check-in area of the departure hall which resulted in the tragic death of Mr Anthony Zervas.

4. A statement of agreed facts was tendered before me. I draw what follows from that document.

5. There had been hostility and enmity between members of the two clubs for some time prior to 22 March 2009. This resulted in various criminal acts being committed, including the firebombing of business premises belonging to the Hells Angels at Brighton; shots being fired into a tattoo parlour owned by a Hells Angels member in Petersham; and the bombing of the Hells Angels clubhouse. The first of those incidents occurred in October 2008 and the others occurred in February 2009.

6. It is not alleged that the present offender was involved in any of these incidents but it is an agreed fact that they all occurred at a time when he was a full member of the Comanchero. He was aware of some hostility between the Hells Angels and the Comanchero but was not aware of the extent of it.

7. There was a hierarchical structure within the Comanchero motorcycle club. At the time of the incident on 22 March 2009, Mahmoud Hawi was the national president; Daux Ngakuru was the "commander"; Farres Abounader was the "road captain"; Tiago Costa was the secretary; Francesco LaRosa was the treasurer; and Rui Antao was the "nominee boss".

8. Full Comanchero members, as the offender was, were required to obey any instruction given by the president or the commander without question. The rules of the club included that they were not to speak to police; they were to contact a certain lawyer if any member was at risk in relation to the criminal law; and they were not to talk to other members about any crimes that had been committed. There were restrictions concerning conversations by telephone. Members were also required to ensure that the president of the club was protected at all times.

9. On 22 March 2009 the offender boarded a Qantas flight in Melbourne destined for Sydney. He was accompanied by four other Comanchero members, Hawi, Canan (aka Ishmael) Eken, Christian Menzies and Maher Aouli. They had all spent the weekend in Melbourne.

10. Derek Wainohu, the president of the Hells Angels, happened to be on the same flight and was seen by Comanchero members. Hawi directed Aouli to contact Comanchero members in Sydney to have them attend Sydney airport. Wainohu sent text messages to members of his club for the same purpose.

11. Passengers on the flight observed animosity from the Comanchero members towards Mr Wainohu before the flight took off. The statement of agreed facts does not indicate the manner in which this animosity was shown, but there is no evidence that the present offender was involved. It was his evidence that he had a hangover from the night before and he slept for most of the flight. It is accepted that he was aware of some aggression being shown on the plane but not the extent of it.

12. Seven Comanchero members arrived at the airport, presumably in response to the calls that had been made. Five of them (AL, SP, Costa, LaRosa and Zoran Kisacanin) proceeded through security screening and went to Gate 5 where the flight was due, while two (Abounader and Usama Potrus) remained in the non-secure area of the terminal.

13. Seven Hells Angels members or associates, including the deceased, also arrived. Two of them, Tom Baker and David Padovan, went to Gate 5. The other five remained in the non-secure area.

The Gate 5 affray

14. The flight landed at about 1.30pm. The five Comanchero members who had been on the flight disembarked at Gate 5 and met up with the five who had proceeded through security screening. Similarly, Wainohu met up with Baker and Padovan.

15. Hawi confronted Wainohu. There was a short verbal argument before Wainohu was punched, causing him to fall to the ground. Members of the Comanchero were then observed to chase and assault Padovan. The affray escalated into violent punching and kicking of Padovan by Comanchero members. The other two Hells Angels, Wainohu and Baker, were not seen to engage in any violence. The fighting resulted in Padovan losing his shirt. At one stage he was on the ground being punched and kicked by numerous Comanchero members, although the Crown does not allege that the offender was involved in this. It is an agreed fact, however, that he was involved in "scuffles" during this incident.

16. There were a large number of members of the public at Gate 5 at the time, including children and elderly people. The offender accepts that those people who witnessed the affray were put in fear by his actions and those of his fellow Comanchero members.

17. Padovan re-joined Wainohu and Baker at the conclusion of the fighting. Hawi pointed at him and yelled out threats, including the words, "You're fucking dead" . The other Comanchero members, including the offender, were close by when this occurred.

18. The entire incident, from the initial confrontation until the uttering of the threats, took less than 3 minutes. None of the participants received any serious injury.

19. The offender accepts that, whilst he did not know much detail about the conflict with the Hells Angels leading up to this day, he was aware of the hostility between the two groups following the Gate 5 affray.

20. The ten Comanchero members then walked towards the exit and when they emerged into the non-secure area of the terminal they met up with Abounader and Potrus who were waiting in the vicinity of the escalator leading down to the baggage carousels.

The confrontation in the check-in area

21. Instead of going downstairs to collect their baggage, the group of now 12 Comanchero members moved quickly towards the group of 5 Hells Angels members and associates, including the deceased, who were waiting in the departure hall. They met up with them at check-in counters 13 and 14, having covered a distance of about 73 metres to do so.

22. There was a short verbal argument before a riot erupted. Witnesses described the two sides fighting each other and "punches flying everywhere". There is conflicting evidence as to precisely how the fighting started. Some say the deceased attempted to attack Hawi whilst others say the Comancheros started it. This is not an issue that can be, or needs to be, resolved for present purposes. By his plea the offender has acknowledged that he was a party to a joint criminal enterprise to assault one or more Hells Angels members and that this involved an unlawful and dangerous act which he realised carried with it an appreciable risk of somebody suffering serious injury.

23. The fighting commenced behind the check-in counters and continued as the participants moved between the counters towards the front of the terminal. Eyewitness descriptions include that the fighting was between two groups with more men in one group than the other. There are references to it being an "all in brawl" with "everybody punching". Bollards used for queueing of passengers at the check-in counters were taken up and used as weapons. There were a number of fights taking place simultaneously.

24. The offender tripped over some luggage as he proceeded between the check-in counters. He confronted a Hells Angels member who was menacing him with a bollard but did not land a blow on him.

25. Mr Zervas died from the combined effects of blunt force injuries to the head and stab wounds to the chest and abdomen. There were three stab wounds, one inflicted by a pair of scissors and two were consistent with being inflicted by a knife.

26. The assault upon the deceased was one of the fights occurring in the check-in area. The Crown alleges that at least three Comanchero members were directly responsible for inflicting the fatal injuries with a bollard and a knife but it does not allege that the offender was involved in this attack, or that he was in the immediate vicinity when it occurred. The offender acknowledges that the deceased died as a result of the actions of others in the riot but he has not nominated any of the individual participants who directly caused the death.

27. Children and elderly people were among the members of the public who were present during the riot. Many witnesses commented on the extreme viciousness displayed by the two groups. Many also said that they were shocked and felt threatened and terrified. One said, "Whilst the fight was occurring I was shocked. The punches were thrown with force and the attack was vicious" . Another said, "During the incident I was scared and sickened as to what had happened. These people looked like animals going at it" .

28. The fighting lasted no more than two minutes. The offender fled the airport at the same time as others. He did not delay to collect his luggage but immediately departed in a taxi with Eken, Aouli and Kisacanin. They were stopped a short distance away from the airport at Brighton-Le-Sands and arrested. The offender was taken to Mascot police station where he declined to be interviewed.

29. The offender was charged with riot and affray. He was remanded in custody until being released on bail on 12 June 2009. On 11 August 2009 he was charged with murder and again refused bail. He was released on bail on 13 August but a review sought by the Director of Public Prosecutions in this Court resulted in bail again being refused on 8 September 2009. He has been in continuous custody since that time. The parties have agreed that to give credit for pre-sentence custody, the offender's sentences should be back-dated to 17 June 2009.

Seriousness of the offences

30. It is important to stress that I am not sentencing the offender for directly causing the death of the deceased. I am not sentencing him for his participation in a joint enterprise that had as its object the doing of an act with the intention of killing or inflicting grievous bodily harm. I am not sentencing him for his participation in a joint enterprise with the contemplation that the commission of murder was a possible occurrence.

31. For the affray, the offender is being sentenced for his participation with fellow Comanchero members in using unlawful violence towards one or more members of the Hells Angels in circumstances that would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.

32. For the manslaughter, the offender is being sentenced for his participation in a joint criminal enterprise to commit an unlawful and dangerous act, namely the assault of one or more members of the Hells Angels, in circumstances in which he realised that there was an appreciable risk of serious injury being occasioned to a person.

33. As for the affray, it was relatively short lived and the offender's role was less than that of other participants. Nevertheless, it was an offence of some seriousness. It involved a considerable number of combatants. The location where it occurred is relevant, as also is the number and nature of innocent people who were present. These are prominent features and render the offence considerably more serious than if it had occurred elsewhere and otherwise.

34. The starting point in assessing the gravity of an offence of manslaughter is to recognise that it involves the unlawful taking of a human life. There are, however, a wide variety of ways in which the crime of manslaughter can be committed and there is an equally wide variety of ways in which an offender may be culpable.

35. The present case is one of considerable seriousness. The offender realised that by engaging in the fighting that occurred in the departure hall there was an appreciable risk of somebody suffering serious injury. That risk was not only of injury to participants in the fighting but to innocent bystanders who included children and the elderly. The offender was part of a large group of men who outnumbered their opponents. The statement of agreed facts discloses, as I have observed, that witnesses were shocked by the level of violence used, with comments made about the viciousness of it. Witnesses were, understandably, sickened and horrified.

36. It must be acknowledged that the offender's role was, relatively speaking, minor. It is not alleged that he was involved to any greater extent than that he engaged in a fight with a single member of the opposing gang. He was not armed and, unlike some others, he did not take up any object to use as a weapon. He was not near to, let alone directly involved in, the attack upon the deceased. Acknowledging each of those matters, however, does not mean that his offence was anything other than a serious one. The absence of those factors simply means that his culpability is less than that of others.

37. There was a level of planning and organisation that attended the incidents. Clearly, a confrontation was contemplated at the time phone calls were made to summon fellow gang members to attend at the airport. There is, however, no suggestion by the Crown that the offender was involved in this activity, or that he himself was aware before the flight landed in Sydney of the prospect of violence.

38. Overall, I assess each of the offences as being of considerable seriousness. The offender was a willing participant in them. However, in assessing the appropriate sentences to impose I must also bear in mind that the role played by the offender was significantly less than that of the other participants.

Denunciation, punishment and deterrence

39. Members of the community have an entitlement to feel safe and secure in public places. The selfish and mindless arrogance of those who perpetrate extreme levels of violence for their own ends with complete disregard for others warrants the strongest condemnation.

40. It is necessary in the assessment of sentence to denounce the offender's conduct. It must be made clear to him, and others who may contemplate acting in such a way, that such conduct will be met with condign punishment. Aggressive and violent conduct between rival gang members in public places simply will not be tolerated, the more so where there is an appreciable risk of somebody suffering serious injury. That risk, in what occurred in this case in the departure hall, was high indeed. The offender must be punished and made accountable for his part in this tragic affair.

Subjective features

41. The evidence before me as to the offender's personal circumstances comprised a handwritten letter and oral evidence by him; criminal and custodial history printouts; a report by Dr Olav Nielssen, forensic psychiatrist; and numerous testimonials.

42. The offender was born in 1987 and so he was aged 21 at the time of the offences and is 23 now.

43. He has prior convictions for driving offences but they are only two in number and are of no present significance.

44. He was born in New Zealand of parents with Maori heritage. His upbringing appears to have been relatively uneventful. He was well cared for and was encouraged to do well at school. He was also good at sports and excelled at rugby union and later, rugby league. His parents separated when he was aged 16. He has a younger brother by his parents' marriage and a half-sister by his mother's subsequent re-marriage.

45. The offender completed high school and then qualified as a mechanic and worked at a car dealership in Christchurch before coming to Australia in 2005. Here he worked as a labourer up until shortly before the time he came into custody. He also played professional rugby league for a club in the western suburbs of Sydney.

46. He has been in a relationship with his current partner for some six years. She has continued to support him and visits him in custody. In the offender's handwritten letter he said, "we both come from families who take great pride in everything and have strong opinions in family values".

47. The offender is concerned at the prospect of deportation to New Zealand following his release. He said that he has been told it is a "strong possibility" . His partner is also troubled by this prospect. She comes from a large but close knit family and she was born and raised in Australia. Whilst she will go to New Zealand with the offender if that becomes necessary, she is saddened by the prospect of separation from her family. Her father provided a testimonial in which, apart from attesting to the offender's many positive qualities, he indicated that the offender had, in effect, been accepted as part of their family.

48. The offender reported some involvement in heavy drinking and illicit substance abuse. He acknowledged to Dr Nielssen that the drinking was associated with disturbed behaviour and made him angry and to feel as though he was "superman". I gained the impression, for example, from the fact that he was able to maintain employment, that this was rather episodic and that there was no entrenched or long-term addiction. In the year before his arrest he had been abusing anabolic steroids but ceased at about Christmas 2008. He was involved in heavy weights training and his weight peaked at 110 kg. He now weighs 95 kg despite a similar training regime. He has attended drug and alcohol counselling sessions in gaol and told Dr Nielssen that he feels much better without all the drugs and alcohol.

49. The offender gave an account of how he came to be involved with the Comanchero. He had a longstanding love of motor cycles and purchased a Harley Davidson motor cycle in 2007. He enjoyed riding in the company of others. Some of these friends went on to become members of the Comanchero and he joined in about late 2007 or early 2008. He said in his evidence that he thought the Comanchero were "just a bunch of boys who just rode around on bikes all hanging out together" . He told Dr Nielssen that he looked on his involvement in the club as, "like being in a footie team ... one in all in" .

50. He had seen some members of the club with "flash cars and things like that". He conceded in cross-examination that it crossed his mind that this was because of involvement in criminal activity but there is no evidence that he was involved in such activity himself. He had worked until shortly before his arrest. He claimed that the only financial benefit he received from involvement in the club was entertainment paid for by the club president.

51. The offender told Dr Nielssen that being in gaol had been "a blessing in disguise" . He had returned to Christianity, changed his attitudes and goals and had reconnected with his family and friends. He said in his evidence that he was originally housed at the Metropolitan Remand and Reception Centre at Silverwater with other Comanchero members. However, in about September 2010 he asked to be moved to another area. He had decided some months before then that he no longer wanted to be a part of the Comanchero. Since 4 February 2011 he has been held in the non-medical wing of the Long Bay Prison Hospital. It had been suggested to him by authorities that it was not in his interests to remain at the MRRC where the other Comanchero were being held. The offender said in his evidence that he had no intention of re-joining the Comanchero upon his eventual release. He said in his letter that he had "true regret and seek repentance from my life as a Comanchero" . He now realised that, "by joining the club and living that lifestyle I was going against my morals and life ambitions to fulfil a fantasy that has brought nothing but darkness to my life" .

52. Dr Nielssen described the offender in this way, and it accorded with the impression I formed upon seeing the offender in the witness box:

Mr Pirini presented as a strongly built man of Maori heritage and said that he was 180 cm tall and weighed 95 kg. ... He did not appear depressed. He was polite and well spoken, with an accent that reflected his Maori background and his upbringing on the North Island of New Zealand. There was no use of profanity or antisocial jargon. ... His intelligence was estimated to be in the normal range, from his general knowledge and reasoning ability.

53. Dr Nielssen concluded by referring to the offender's report of a period of reflection over the past two years in custody and of his leaving the Comanchero, having broken ranks by pleading guilty and no longer wanting any association with the club. The doctor thought that, based on the offender's presentation in a single interview, he had "reasonable potential for rehabilitation to a law abiding lifestyle".

54. The offender was asked by his senior counsel how he felt about his involvement in the offences. He said that he was "truly and deeply sorry" . He went on to acknowledge the shock, pain, grief and suffering the family of the deceased had endured. He said that he prayed for them. He also acknowledged the impact that the incident has had upon the community, with "the horror and danger" played out to those members of the public who were present. Similar sentiments were expressed in the offender's letter.

55. A very strong and clear message emerges from the numerous testimonials that were tendered as to the offender having many innate good qualities. The authors speak of him being loyal, hardworking, quiet, respectful, humble, gentle and well-mannered. He is described as a person not prone to anger, aggression or violence. His remorse is described as deep and genuine.

Specific mitigating features

Plea of guilty

56. I have earlier mentioned that the offender pleaded guilty to manslaughter and affray on 16 December 2010. He had been committed for trial for murder and affray on 23 September 2010. The plea was, in effect, entered on arraignment in this Court.

57. An issue arose as to whether the Criminal Case Conferencing Trial Act 2008 (the CCCT Act ) applies to the proceedings. This Act provides for compulsory conferences to be held between the legal representatives for the prosecution and defence at an early stage of the committal process. One of the purposes of such a conference is to determine whether there is any offence to which the accused person is willing to plead guilty (s 6(3)). If such a plea is entered prior to committal for sentence, the Act provides for a mandatory reduction of sentence of 25 per cent. If a plea of guilty is entered after committal for trial, then the maximum reduction that may be allowed is 12.5 per cent unless "substantial grounds exist ... for allowing a greater discount" (s 17(4)). Four matters are set out in s 17(5) as an exhaustive list of what may amount to "substantial grounds". None of them apply to the present case.

58. Section 4 of the CCCT Act provides:

4 Proceedings to which Act applies

(1) This Act applies to proceedings in relation to an indictable offence if, and only if, committal proceedings in respect of the offence will be heard in the Local Court sitting at the Downing Centre, Sydney and Central, Sydney.

(2) The regulations may extend the application of this Act to such proceedings in other courts or courts sitting at other places or may apply this Act to such proceedings in other courts or courts sitting at other places rather than as provided by subsection (1).

(3) Despite subsections (1) and (2), this Act extends to such proceedings that have been transferred to another court if the compulsory conference steps referred to in section 7 (1) (a) and (b) have been completed before the transfer.

59. The committal proceedings for the offender were initially at Central Local Court but on 12 March 2010 they were transferred to Parramatta Local Court. No regulations have been made extending the application of the CCCT Act to the latter (s 4(2)). The CCCT Act would nevertheless apply if the compulsory conference steps referred to in s 7(1)(a) and (b) had been completed before the transfer (s 4(3)).

60. The compulsory conference steps in s 7(1)(a) and (b) are:

7 Compulsory conference timetable

(1) For the purposes of this section, the compulsory conference steps are the following steps taken with respect to a compulsory conference between the legal representative of an accused person and the prosecution:

(a) service of a copy of a brief of evidence complying with section 8 on the accused person or the accused person's legal representative,

(b) service of a copy of a pre-conference disclosure certificate complying with section 9 on the accused person or the accused person's legal representative.

61. A copy of a brief of evidence had been served prior to the transfer of the proceedings to Parramatta and so the first of those two steps had been taken. However, it is common ground that the prosecution had not served a copy of a pre-conference disclosure certificate prior to the transfer, or at all. The reason for that is that counsel then (but not now) appearing for the offender, and according to the offender, without instructions, declined to participate in the criminal case conferencing process.

62. For these reasons, the CCCT Act does not apply. The result is that my discretion to assess the extent by which the offender's sentence should be reduced on account of the utilitarian benefit flowing from his pleas of guilty is not fettered by the maximum allowable reduction of 12.5 per cent provided for in s 17(4).

63. In R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [31] (which involved proceedings to which the CCCT Act did not apply), Howie J remarked that it was "difficult to see how, in the usual case, a plea of guilty on arraignment could justify a discount of more than about 15 per cent". The present, however, is not "the usual case". Rather, the anticipated length and complexity of a trial of the offender and the 11 other persons with whom he was committed to stand trial makes it quite an unusual case. He is the only one to have pleaded guilty after committal. The other 11 are to stand trial commencing on 9 May 2011. I was informed at a pre-trial hearing last Friday that counsel for the Crown and most of the accused estimate a duration of 6 months. It is self-evident that a trial of that length with so many accused, each separately represented, will present considerable complexity. In these circumstances, a reduction of greater than 15 per cent is appropriate. I propose to allow a reduction of 20 per cent.

Other mitigating factors

64. There are a number of other statutory mitigating factors that I must take into account. It will be apparent from what I have set out earlier that the offender has no significant record of previous convictions and, I accept, was of prior good character. I am also satisfied that he is unlikely to re-offend and that he has good prospects of rehabilitation.

65. A matter that is particularly significant in relation to the offender's rehabilitation prospects is that undoubtedly he is deeply and genuinely remorseful. He has acknowledged his wrong-doing. He has acknowledged the impact it has had upon the family of the deceased. He has also acknowledged the impact it has had upon the community, both generally, and in particular upon those who were present at the airport and who witnessed such a horrifying and violent incident.

Sentencing of co-offenders

66. AL, a Comanchero member, pleaded guilty in the Local Court to charges of affray and riot. He was sentenced by his Honour Judge Charteris on 17 June 2010 to a total term of 3 years with a non-parole period of 9 months. His Honour was satisfied that AL was a participant in the fighting at Gate 5 and subsequently in the check-in area but his role was relatively minor. The judge made an assessment that the affray was "at the lower end of the broad middle range of offences of this nature" and the riot was "in the upper end of the middle range of seriousness of offences of this nature".

67. AL was aged 40 at the time of the offences. He had a record of previous convictions which included offences of assault, possession of a shortened firearm and demanding property with menaces. He had been sentenced to imprisonment for the latter two offences. His Honour found that AL was genuinely remorseful and had good prospects of rehabilitation.

68. AL had been arrested on 2 September 2009. He co-operated with the authorities almost immediately. He engaged in a number of interviews and undertook to give evidence against others. He was in custody bail refused for about six months and then on bail for about three months before he was sentenced. Whilst in custody he was held in protection and whilst at liberty his freedom was subject to restrictions because of fears for his, and his family's, safety.

69. Charteris DCJ determined upon a starting point for the sentence for the affray of three years and for the riot of six years. He reduced those sentences by 55 per cent, 25 per cent for the pleas of guilty, 10 per cent for past assistance and 20 per cent for future assistance. The resulting sentences were 16 months and 2 years 8 months which were accumulated so as to result in the overall sentence I earlier mentioned. His Honour specifically mentioned that setting the non-parole period at 25 per cent of the total term was "an extraordinary step" but felt it was justified by circumstances which were "genuinely special".

70. SP, another Comanchero member, also pleaded guilty in the Local Court to charges of affray and riot and was sentenced by Charteris DCJ on 18 June 2010. The sentence imposed was in identical terms to that imposed upon AL except for the commencement date. His Honour found that he could not differentiate between the roles the two played in the offences and he gave their respective subjective cases the same mitigating weight. SP had also provided assistance and undertaken to give evidence. The same level of reduction of sentence was allowed, that is, in all, 55 per cent.

71. The sentences imposed upon these two offenders will be borne in mind in the assessment of sentence for the present offender. The differences, most notably that they were sentenced for riot, not manslaughter, and that they received substantial reductions in their sentences for their assistance to authorities, obviously mean that the sentence I impose upon the offender overall will be significantly longer. I propose to proceed from a starting point for the affray sentence at a slightly lower level than did Charteris DCJ. The role played by this offender in that offence was broadly similar to the roles played by AL and SP but he has a more favourable subjective case.

Other sentencing considerations

72. It is necessary to determine sentences for the individual offences and then to determine whether they should be served concurrently or otherwise. That determination is made with the principle of totality in mind. The Crown Prosecutor submitted that there should be some level of partial accumulation of the sentences because there were two distinct offences committed some distance apart. The affray at Gate 5 had ended but instead of the Comanchero members leaving it at that and proceeding downstairs to the arrivals hall to collect their baggage, they proceeded through to the departure hall to take on the Hells Angels in greater numbers. It was conceded on behalf of the offender that there could be some degree of accumulation but Mr Stratton SC submitted that it need not be great. I accept these submissions. The sentence for the manslaughter offence will be partially accumulated upon the sentence for the affray to a modest extent.

73. There will be no utility in fixing a non-parole period for the affray sentence and for that reason I will impose a fixed term sentence. I should say that the fixed term will be at the length of what would ordinarily be the total term of the sentence. I acknowledge that there is a view that a fixed term should be the length of what would otherwise be the non-parole period but that is a view that has emanated from a time of different sentencing legislation and does not appear to have since been questioned despite a number of legislative changes. In my view there is nothing in principle that supports a proposition that there should be a reduction of a sentence from what would otherwise reflect the objective gravity of the offence, and all of the other circumstances of the case, because it is a fixed term. In any event, the discretion provided by s 45 of the Crimes (Sentencing Procedure) Act 1999 is to "decline to set a non-parole period", not to set a non-parole period with no parole period.

74. Mr Stratton submitted that I should find that there are special circumstances for imposing a longer parole and shorter non-parole period. I do not understand the Crown to contend to the contrary, although clearly it is a matter for me to determine in the exercise of my discretion.

75. In my judgment there are special circumstances. The offender lived a productive, healthy and otherwise blameless life until he joined the Comancheros about 12 months before the offences. There is no suggestion that he engaged in any criminal activity whilst he was a member but he did acknowledge in his letter that there was an amoral aspect to the Comanchero lifestyle. He has now moved away from the Comancheros. I accept that it has taken considerable courage to do so. He does have the benefit of a supportive partner and extended family to assist him upon release from his first experience of gaol. However, I am of the view that it would be of considerable benefit if he were to also have an extended period of parole supervision to assist him in re-establishing his life. Finding and maintaining employment after imprisonment for offences of such notoriety will be a new difficulty he will face. Avoiding past associations and the potential for conflict will also present a new challenge. I propose to set the non-parole period of the aggregate sentence at the least level commensurate with the objective gravity of the offences.

SENTENCE

On each: Convicted

Affray: Sentenced to a fixed term of imprisonment of 2 years 2 months. The sentence is to date from 17 June 2009 and expire on 16 August 2011.

Manslaughter: Sentenced to imprisonment comprising a non-parole period of 3 years and a balance of the term of the sentence of 3 years. The sentence is to date from 17 December 2009. The offender will be eligible for release on parole upon the expiration of the non-parole period on 16 December 2012. The total term will expire on 16 December 2015.

That is a total sentence of 6 years 6 months with an overall non-parole component of 3 years 6 months.

The sentence of 2 years 2 months for the affray, but for the offender's plea of guilty, would have been one of 2 years 8 months.

The sentence of 6 years for the manslaughter, but for the offender's plea of guilty, would have been one of 7 years 6 months.

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