Supreme Court New South Wales Medium Neutral Citation: R v Kisacanin [2012] NSWSC 91 Hearing dates: 17 February 2012 Decision date: 17 February 2012 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Affray: Sentenced to a fixed term of imprisonment for 2 years 2 months. Riot: Sentenced to imprisonment with a non-parole period of 2 years 8 months and a balance of term of the sentence of 2 years 1 month. The aggregate term is 5 years 3 months with a minimum period to be served of 3 years 2 months before parole eligibility. Catchwords: CRIMINAL LAW - sentence - riot - affray - violent fight between rival bikie gang members at airport - serious examples of offences - conviction after protracted trial - acquittal for murder and manslaughter - offer to plead guilty rejected by prosecution - deterrence - special circumstances - parity with co-offenders Legislation Cited: Crimes Act 1900 Cases Cited: 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 Category: Sentence Parties: Regina Zoran Kisacanin Representation: Counsel: Ms H Roberts (Crown) Mr J Gordon (Offender) Solicitors: Solicitor for Public Prosecutions Elie Rahme and Associates File Number(s): 2009/127777 Publication restriction: Non-publication of anything that would identify witnesses known as SP and AL Judgment 1HIS HONOUR: The offender, Zoran Kisacanin, was found by a jury to be not guilty of murder and manslaughter but guilty of riot. This is an offence against s 93B Crimes Act 1900 for which there is prescribed a maximum penalty of imprisonment for 15 years. He was also found guilty of a separate charge of affray which was alleged to have occurred shortly before the riot. That is an offence against s 93C and the maximum penalty is imprisonment for 10 years. 2The trial commenced with empanelment of the jury on 24 May 2011. There were seven accused. The jury retired on 29 September 2011 and returned its verdicts on 2 November 2011. Facts 3By way of background, it was an agreed fact in the trial that each of the accused were aware that there was ongoing hostility between two rival motorcycle gangs, the Comancheros and the Hells Angels. The Comancheros were headed by a national president, Mahmoud Hawi, who had absolute power. It was a club which had a hierarchical structure, underpinned by strict and enforceable rules. These rules governed the behaviour expected from members and reinforced a strong culture of loyalty of members towards one another and to the club. Such rules included that any display of cowardice would not be tolerated. 4Both the affray and the riot occurred in the Qantas domestic terminal at Sydney Airport on 22 March 2009 when there was a confrontation between members of the Hells Angels and the Comancheros, first at Gate 5 and then a short time later in the departure hall. Some of the participants were not actually members of either gang but were either nominee members or associates of members. The offender was a nominee member of the Comancheros. For convenience, however, I will refer to people as being a member of one or the other gang. 5Mahmound Hawi, Christian Menzies, Ishmail Eken, Pomare Pirini and Maher Aouli, all members of the Comancheros, were in Melbourne over the weekend of 21-22 March 2009. They caught Qantas flight 430, departing Melbourne at about midday and arriving in Sydney at about 1.30pm on the Sunday. 6Derek Wainohu, the president of the Hells Angels, happened to be on the same flight and was seen by Comanchero members. Hawi exhibited animosity by glaring and gesturing as he walked up and down the plane past Wainohu a number of times. He directed Aouli to contact other members in Sydney in order to have them attend the airport. Wainohu sent text messages to members of his gang for the same purpose. Hawi was also heard to command Eken to " Get the guys to meet us at the other end". 7There followed a series of communications between Comanchero members in Sydney which culminated in seven of them proceeding to the airport with haste: the offender travelled in one car with Usama Potrus,SP and AL (publication of their names has been suppressed); Farres Abounader, Frank La Rosa and Tiago Costa were in another car. 8Seven Hells Angels members or associates also came to the airport: Peter and Anthony Zervas, Musa Ovalle, David Padovan, Tom Baker, Peter Martin and Elias Khoury. 9The seven Comancheros who came to the airport did so under the obvious impression that their attendance was required as a matter of urgency. The two cars with their seven occupants proceeded to a meeting with senior club members at Brighton before going to the airport. On arrival at the airport the cars were parked illegally directly outside the lower, baggage claim, level. All the occupants alighted and entered the building. They immediately went via escalators at the eastern end of the terminal to the upper, departure hall, level where they walked in front of the check-in counters towards the security checkpoint at the western end. Five of them proceeded through security screening into the "sterile area" and then to Gate 5 where passengers from QF430 were disembarking. The other two, Potrus and Abounader, waited in the departure hall. Abounader was armed with a knife and it would be common sense to infer that he feared it would be detected if he went through security screening. 10Two of the Hells Angels who came to the airport, Baker and Padovan, went through to Gate 5. The other five waited in the departure hall but in an area well away from where Abounader and Potrus waited. There was no direct evidence that either of the two groups became aware of the presence of the other. The Affray at Gate 5 11The affray occurred in the immediate vicinity of Gate 5 after the arriving passengers disembarked. Almost immediately after emerging into the terminal there was a confrontation between Hawi and Wainohu. There was a short verbal argument before Wainohu was punched, causing him to fall to the ground. Members of the Comancheros 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. 12The fighting resulted in Padovan losing his shirt. At one stage he was on the ground being punched and kicked by numerous Comanchero members. The offender can be seen on security camera footage to have been amongst the Comancheros who pursued Padovan. There was no direct evidence that he was involved in the ensuing assault but the jury's verdict entails acceptance that he was involved in the use, or threatened use, of violence. At the end of the melee, which was very short-lived, he picked up Padovan's shirt and carried it away. 13Verdicts of guilty for affray were also returned in respect of Hawi and Menzies. Some of the others had earlier pleaded guilty to affray, they being SP, AL, Pirini, Aouli, La Rosa and Costa. Eken was acquitted. The only Hells Angel to be charged was Padovan but he was acquitted. The submission by his counsel in his closing address to the jury that "he was flogged" by the Comancheros was, in my view, apt. 14There was evidence that at the conclusion of the events at Gate 5, Hawi pointed and uttered threats towards one or more of the Hells Angels. One witness said that he heard, "You're dead, you are fucking dead" . Another heard, "You're a dead man, you're fucking dead, you've got bullet holes in you" . If the witnesses were able to hear these threats, the offender must have as well. Some witnesses described a very hostile environment as the Comancheros left the area. There were shouts of "fuck off" and "you're a cunt" and gesturing towards Padovan as they walked away. 15There were many members of the public at Gate 5 at the time, including children and elderly people. Many of them were understandably shocked, horrified and scared by what they witnessed. 16From the foregoing, I am satisfied of a number of matters that are worth recapping in order to put what next occurred in context. The Comancheros and Hells Angels motorcycle gangs were, in effect, at war with each other. The offender was a nominee member of the Comancheros. He was subject to its strict rules requiring loyalty and prohibiting cowardice. 17I am satisfied that when he proceeded to the airport the offender was aware that there was a prospect of a confrontation with one or more Hells Angels. Given the history of hostility between the two gangs it was a reasonable possibility that such a confrontation would involve violence. That became the reality almost immediately. After the affray had ended, it must have been obvious to the offender, and his companions, that their gang president was extremely displeased and had indicated that he wanted vengeance at the next opportunity, whenever that might be. The riot in the departure hall 18The Comancheros walked as a group out of the sterile area and emerged into the departure hall where they were immediately met by Potrus and Abounader. The group of now 12 Comancheros then walked in an easterly direction towards where the 5 Hells Angels were milling about. 19There was an issue in the trial as to why the Comancheros walked in this direction. Were they aware of the presence of the Hells Angels? Were they intent on confronting them? It was contended on behalf of the Comancheros that they were simply heading towards the escalators at the eastern end of the terminal that had been used earlier by the seven who had come to the airport in order to go downstairs to the cars and leave the airport. I indicated when sentencing Eken and Potrus that this claim had no credibility and said that it seemed highly likely that the Comancheros walked deliberately towards the waiting Hells Angels; probably because Abounader and Potrus had become aware of their presence. However, I also indicated that it was unnecessary to decide this issue and that what really was of significance was what occurred when the two groups came together. 20If the Comancheros were not previously aware of the presence of the Hells Angels, they obviously became aware of them as they walked in their direction. As they got closer to the Hells Angels they quickened their pace. This was a disputed issue but I am satisfied that the security camera footage clearly indicates this. The offender peeled off and ran between the check-in counters and then continued running east in what I am satisfied was an apparent attempt to approach the Hells Angels from a different angle; something of a flanking manoeuvre. 21It was submitted on the offender's behalf to the jury that he was running for the exit but that when he emerged at the front of the check-in counters he was confronted by the bollards and tape of the queueing system and so he had to turn to the left (west). However, the security camera footage shows that his turn to the left was immediate; there was no sign of any hesitation at all. If getting out of the airport was his intent, he could either have ducked under or stepped over the obstacle, or, at least, gone around it. However, security camera footage showed that he was still in the terminal almost a minute later. One witness described a man running along the front of the check-in counters and then "appearing" to run towards the area behind them where the Hells Angels were. I am satisfied that the offender's intention was to approach the Hells Angels from a different angle. This also bespeaks of an intention to assist his fellow Comancheros in attacking the Hells Angels before the two groups came together and before there was any suggestion of counterattack by any of them. 22Very soon after the two groups came together a violent fight erupted. It commenced behind the check-in counters and then moved through the counters towards the front of the terminal building. Not all of the Comancheros were actively involved. They did not need to be, given that they greatly outnumbered their enemy. 23A general theme of the cases for the Comanchero accused was that it was the Hells Angels waiting in the departure hall who were the aggressors and that Mr Anthony Zervas initiated the fighting by attacking Mr Hawi. Claims by Comanchero accused that they were only acting in self-defence were obviously rejected by the jury. 24It was common ground that Anthony Zervas did attack Hawi. I am satisfied that this only occurred when it became obvious that the Hells Angels were about to be attacked. It was a foolish thing for Mr Zervas to have done. He was 161 cm tall and weighed only 58 kg while Hawi was 178 cm tall with a heavy muscular build. 25Anthony Zervas was very quickly pursued towards the front glass wall of the terminal where he went to the ground. He suffered a severely fractured skull from having been bludgeoned with one or more bollards and was stabbed. He died at the scene. Hawi has been found guilty of his murder. All of the other Comanchero accused were acquitted of murder. Some, including the offender, were also acquitted of manslaughter while the jury could not agree in respect of manslaughter for Menzies and Abounader. Menzies has since pleaded guilty to manslaughter and Abounader is to face a retrial later this year. 26In order to find the offender guilty of riot, the jury must have been satisfied beyond reasonable doubt that he was among twelve or more persons who had a common purpose to fight and that he used unlawful violence for that purpose. It is unsurprising that the jury were also satisfied of the other element of the offence of riot: that the conduct of the twelve or more persons was such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. 27The fighting that took place, although short-lived, was shockingly vicious. One witness spoke of "an explosion of fighting" (T1281). This witness was sitting on a bench with her two very young children, one of whom was in a pram. She became "frozen with fear" and held her children close to protect them. Another witness said that she "saw the large group of men fighting incredibly violently and aggressively" (T2293). She said that the men were fighting in one group and then they split up into smaller groups. 28Another witness referred to the fighting as "chaotic and quite wild and uncontrolled"; the men were "raging, really angry" (T1533-4). This witness and her companion fell over when he tried to pull her out of the way as the brawling continued into the area in front of the check-in counters. Her companion also gave evidence that there was a little girl in front of him who he grabbed to get her out of the way. The fatal assault upon Anthony Zervas took place within a metre or two of an elderly couple who were seated on a bench waiting for a wheel chair to be brought to them. 29The fighting generally involved wrestling, punching and kicking. However, some of the participants picked up bollards to use as weapons. A witness referred to the men moving through the check-in counters and said, " As they got slowed down by the [passengers queuing to check in their bags], it started breaking off into groups and then they started having their own little altercations, throwing punches, kicks, with barrier poles, signs, just about anything they could find" (T1025). Another said that he "saw the metal bollards being thrown through the air and smashed on to people" (T1052). A Qantas staff member said that the fighting men "fell into the crowd; people went flying, screaming; and the bollards were flying" (T1109). 30The offender was one of those who picked up a bollard. There was no evidence as to what he did with it. However, he was clearly seen in security camera footage putting a bollard down in an area away from where the bollards had been placed to direct passengers queueing to check in. 31There is no evidence which positively identified the offender as one of those actively involved in the fighting. However, there was evidence from a witness who said that she saw a man come from in front of the check-in counters to join in the fighting that had broken out behind them (T1209). That was consistent with the path the offender took to approach the Hells Angels from a different angle. There was evidence from another witness who said she saw a man pick up a bollard and swing it before she looked away. She described the clothing of this man in a fashion that could have been regarded by the jury as matching the offender (T974-948). Another witness saw a man "from another fight" casually putting a bollard down (T2326). 32The evidence of each of these witnesses, considered separately, was incapable of establishing beyond reasonable doubt that the offender was involved in the actual use of violence. However, when considered together, as well as with the descriptions of a large number of witnesses as to how many men were involved in the fighting, I am satisfied that the offender did play a role in it, even though I am not able to make a precise finding as to what he actually did. 33The riot was short-lived; it took less than a minute. Nevertheless, it is clear that many witnesses found the incident most distressing. The witness who was trying to protect her two small children said that she went into shock and felt like she could not breathe (T1288). Her husband described her as being "really distressed, yelling, crying" (T1314). Another witness said that the mother was "clearly ... very distressed and looked quite shocked and she burst into tears" . This witness added, "I suppose I became distressed myself" (T2513). An elderly woman said that she had to turn away because she "got too distressed because (she had) never experienced anything like this" (T1353). The elderly couple seated close to where the fatal assault took place were observed to have been in distress (T1676). One of the first police officers on the scene said that a number of the members of the public who were present "appeared distressed and upset" (T2518). The offender acknowledged in an affidavit which was tendered in the sentence proceedings that "people present at the airport who witnessed the violence would have been overcome with fear" . 34The offender left the scene in a taxi with some of the other Comancheros. They were arrested a short time later at Brighton-Le-Sands. The offender was charged with affray and refused bail. He was charged with riot on 27 May and remained in custody until he was released on bail two days later. He was charged with murder on 11 August 2009 and again refused bail and he has remained in custody since. It is agreed that to give credit for pre-sentence custody his sentence should be backdated to 3 June 2009. Outcomes in respect of others involved 35There were, as I have said, 12 Comancheros and 8 Hells Angels present at the time of the offences. For convenience, their names and, where proceedings were taken against them, the outcomes are as follows. Comancheros Mahmoud Hawi Found guilty of murder and affray. Yet to be sentenced. Christian Menzies Acquitted of murder. Jury unable to agree on manslaughter. No verdict taken on riot. Found guilty of affray (Gate 5). Subsequently pleaded guilty to manslaughter. To be sentenced on 2 March 2012. . Farres Abounader Acquitted of murder. Jury unable to agree on manslaughter. No verdict taken on riot. Retrial listed in September 2012. Ishmail Eken Acquitted of murder, manslaughter and affray (Gate 5). Found guilty of riot. Sentenced to 5 years with a non-parole period of 3 years: R v Eken; R v Potrus [2012] NSWSC 2. Usama Potrus Acquitted of murder and manslaughter. Found guilty of riot. Sentenced to 5 years with a non-parole period of 3 years: R v Eken; R v Potrus [2012] NSWSC 2. Pomare Pirini Pleaded guilty to manslaughter and affray (Gate 5). Total sentence of 6 years 6 months with non-parole period 3 years 6 months: R v Pirini [2011] NSWSC 1395. Frank La Rosa Pleaded guilty to manslaughter and affray (Gate 5). Total sentence of 7 years 1 month with non-parole period of 3 years 9 months: R v La Rosa [2011] NSWSC 1394. Maher Aouli Pleaded guilty to manslaughter and affray (Gate 5). Total sentence of 6 years 2 months with non-parole period 3 years 6 months: R v Aouli [2011] NSWSC 1393. Tiago Costa Pleaded guilty to manslaughter and affray (Gate 5). Total sentence of 7 years 1 month with non-parole period 3 years 9 months: R v Costa [2011] NSWSC 1392. AL Pleaded guilty to riot and affray (Gate 5). Sentenced in District Court to total of 3 years with non-parole period of 9 months. (55% reduction for pleas of guilty and assistance to authorities). SP Pleaded guilty to riot and affray (Gate 5). Sentenced in District Court to total of 3 years with non-parole period of 9 months. (55% reduction for pleas of guilty and assistance to authorities). Hells Angels Derek Wainohu Not charged. Tom Baker Not charged. Peter Martin Not charged. Elias Khoury Not charged. David Padovan Acquitted of riot and affray (x2)(Gate 5 and departure hall). Musa Ovalle Pleaded guilty to affray (departure hall). Sentenced in Local Court to suspended sentence of imprisonment for 10 months. Peter Zervas Pleaded guilty to affray (departure hall). Sentenced in Local Court to 16 months with non-parole period of 8 months. Anthony Zervas Deceased. Objective seriousness of offence 36For the affray, the offender is being sentenced for his participation with fellow Comanchero members in using or threatening to use unlawful violence in circumstances that would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. The offender was at least involved in threatening violence in that he was actively involved in the pursuit of Mr Padovan before he was brought to the ground, kicked and punched. I cannot be satisfied to the required standard that he played a part in the kicking and punching but that does not lessen his culpability by a significant degree. 37The affray was relatively short lived but nonetheless was an offence of some seriousness. It involved a considerable number of combatants. The location where it occurred is relevant, as is the number and nature of innocent people who were present. These are prominent features that render the offence considerably more serious than if it had occurred elsewhere and otherwise. 38In relation to the riot, it was not the subject of any real planning or premeditation, although I am satisfied that when the offender proceeded towards the airport there was at least a prospect that a violent confrontation might occur. It had its genesis in three significant factors - the nature of the Comancheros with their culture of loyalty and with cowardice eschewed; the war with the Hells Angels; and the chance encounter with the Hells Angels president on flight QF430 from Melbourne. The first response from both sides was to summon reinforcements to Sydney airport. This may not have been done with it being specifically intended that there would be a violent confrontation but this confluence of events created what the Crown Prosecutor submitted in her closing address to the jury was the "perfect storm for the eruption of violence by the Comanchero Motorcycle Club that day" (T4143). 39As between the two groups, I am satisfied that it was the Comancheros who were the principal aggressors. They were prepared to engage in violence at Gate 5 with their obvious advantage in numbers of 10 to 3. As can be seen from the above table, 9 out of those 10 have been found guilty by the jury or have earlier pleaded guilty. The Comancheros were prepared to continue with violence at an escalated level in the departure hall. Anthony Zervas having the temerity to make a pre-emptive strike against Hawi probably fuelled the aggression of at least some of the Comancheros. 40The Comancheros outnumbered their enemy by 12 to 5 at the commencement of the riot. All but 1 of those 12 have either pleaded guilty, or have been found guilty, of playing a role in the unlawful violence that took place in the departure hall. On the other hand, only 2 of the 7 surviving Hells Angels who were at the airport have been found to be accountable. There has never been a suggestion that 4 of them (Wainohu, Baker, Martin and Khoury) were criminally responsible and the other (Padovan) has been held by a jury to be not criminally responsible. 41A matter that is particularly relevant in assessing the objective seriousness of the riot is the location in which it occurred. The participants were prepared to engage in wanton and significant violence regardless of the presence of many airline and airport staff and members of the public. An airport terminal is a place where people are entitled to expect safety and security. There were elderly people and small children present. A significant number of those who witnessed the events were utterly distressed and fearful. I have no doubt that the memory of it will live long in their minds. For example, I very much doubt that the mother who cowered in fear trying to protect her infant children will easily forget the experience. 42In assessing the seriousness of the offence, I have had regard to the riot overall as well as to the actual role played by this offender. I have borne in mind that the jury's verdicts necessitate that I exclude from consideration any responsibility of the offender in relation to the death of Mr Anthony Zervas. It cannot be said that the offender played a leading, organisational or inspirational role. I am satisfied that he was a follower, doing what he understood was expected of him in the circumstances. His use of violence, a necessary element underpinning the verdict of guilty of riot, was at least in the taking up of a bollard and becoming involved in the fighting in a way incapable of precise description. 43I am satisfied that this was a serious example of an offence of riot. Subjective features 44The offender is currently aged 25 and he was 22 at the time of the offences. He was born in Serbia and came to Australia with his parents and younger brother in 1988. Up until 2003 his family regularly travelled back to his homeland. The family actually lived in Serbia between 1999 and 2003 but his parents then separated and he and his father returned to Australia while his mother and brother remained in Serbia. Apart from the separation of his parents and these travels having some effect on the continuity of his education, there does not appear to have been anything else of present significance in the offender's upbringing. 45The offender has been consistently in employment since leaving school at the age of 17. He has worked in retail stores and cafes, as a computer operator and with his father as a painter. At the time of his arrest he was working as a labourer with DFRS Mechanical Australia Pty Ltd. The company was involved with the installation of air conditioning at a large construction site in Gatton, Queensland. The offender flew up to work there during the week and returned on weekends. 46The offender said in his affidavit that he became involved with the Comancheros after meeting members at a local gymnasium. They spoke to him favourably about the gang and he decided to join. He said that it "sounded like good fun hanging out with the guys and being part of a brotherhood" . He added that his only family in Australia was his father; his mother and brother being in Serbia. He had been a nominee member for about 6 months by the time of the incident at the airport. He had kept his involvement with the Comancheros a secret from his father. 47The offender has remained housed with his Comanchero colleagues in gaol. This has been his preference as, he said, he "had no idea what to do if [he] was alone in prison" . 48The offender acknowledges the fear and stress that he has put his father through since his arrest. Concern about the possibility of his son being convicted of murder and spending a long time in prison would no doubt have been difficult for Mr Kisacanin to endure. The offender has promised him that he will cease his association with the Comancheros. He is aware that he will lose the support of his father, something he appears to value greatly, if he does not keep that promise. 49These matters were confirmed in the affidavit sworn by Mr Dragan Kisacanin. He said that he had not previously been aware of his son's Comanchero involvement and has told him that he did not approve of it. 50As to the future, it is planned that the offender will live with his father and work with him in a painting business. Mr Kisacanin has thereby confirmed his support for his son but has also confirmed that he will lose it if he does not keep his promise. The offender said that he plans to work hard to repay his father for his support and make up for the stress he has put him through. Some specific mitigating features 51As I have previously indicated, the offender has acknowledged the fear that those at the airport must have experienced as a result of witnessing the violence that occurred. He says that he accepts that he must be punished for the role he played in that violence. He added, "I am completely regretful, remorseful and ashamed of my actions. I have hurt people I didn't even know by my attendance and conduct at the airport. I have also hurt my family." . There was no challenge to this evidence and so I am prepared to accept that he is remorseful. 52The offender has convictions for two relatively minor matters in the Local Court in 2006 for which he was fined. It is a statutory mitigating factor that he does not have a significant record of previous convctions. I also accept he may be regarded as a person of prior good character. 53Mr Gordon submitted that I should find that the offender has good prospects of rehabilitation. That would appear to be the case if he does carry out his plans to live and work with his father and avoid any involvement with the Comancheros or similar organisations. The impression I have is that the offender is genuine in having these stated intentions. Willingness to plead guilty 54The offender was committed for trial on 23 September 2010. On 18 November 2010 his solicitors wrote to the Director of Public Prosecutions conveying an offer to plead guilty to riot and affray in full discharge of the indictment. In the event that this offer was not acceptable, the letter included a request for an indication as to what charge the Crown would accept a plea of guilty to in full satisfaction of the indictment. Obviously this was a question whether a plea to manslaughter would be accepted. The Director replied that only a plea to murder and affray would be acceptable. 55I propose to allow a reduction of sentence of 20 per cent for the offender's willingness to plead to the charges for which he was ultimately found guilty. My reasons for this are they same as they were in respect of the co-offenders Eken and Potrus: see R v Eken; R v Potrus , supra, at [57] and [73]. Onerous custodial conditions 56A submission was made that I should take into account certain onerous custodial conditions that the offender has experienced. This relates to the time he has been required to attend court for his committal hearing and trial. Normally it is not a mitigating factor that an offender has been required to attend court. However, in this case the trial was protracted, including the period during which the jury were deliberating. The committal hearing extended over some three months as well. These periods combined, in the order of 8 or 9 months, involved the offender being taken from his cell at an early hour; not returned until late in the day; being denied other than legal visits on those days and being denied recreational opportunities. Being required to remain in the court cells for much of each day while the jury were deliberating for over a month, often without being required to be brought up to the court room at all, is also a relevant matter. Whilst this is not a major factor in mitigation, it is something to which I have had regard. Special circumstances 57It was submitted by Mr Gordon, and not opposed by the Crown, that there should be a finding of special circumstances. I accept that submission. It would be in the interests of both the offender and the community that there be a longer than usual period of parole supervision. The purpose of this is to ensure, as far as possible, after the offender's release from his first experience of gaol that he re-establishes a stable life in the community, including settling back into employment, and, most importantly, avoids any further involvement with outlaw motorcycle gangs and their members. I expect that the Parole Authority would take a particular interest in the last of those matters. Deterrence 58Another important matter that must be factored into the assessment of the appropriate sentence is deterrence. Personal deterrence cannot be ignored, even with the finding I have made about the offender's rehabilitation prospects. 59More important, however, is general deterrence; that is, the deterrence of others. It was brazen and arrogant for the offender and his Comanchero colleagues to further their ongoing dispute with the Hells Angels by carrying out a violent attack in such a public place as an airport terminal. 60As I have said in other sentence proceedings, it is a regrettable and distressing fact that wars between rival bikie gangs occur from time to time. Those who perpetrate serious violence or property damage in pursuit of such wars must know that significant punishment awaits them upon detection. However, when the violence spills out into the public arena, as exemplified by this case, a clear message must be sent that it will be met by punishment that is severe. Parity 61In other sentence proceedings I have referred to the manner in which his Honour Judge Charteris in the District Court assessed the sentences which he imposed upon AL and SP who had pleaded guilty to riot and affray: see, for example, R v Pirini , supra, at [66] ff and the additional observations made about the incorrect factual basis upon which the riot offence was dealt with that I made in R v Eken; R v Potrus , supra, at [79]. 62I do not intend to recite again the manner in which sentences were assessed for each of the co-offenders. I simply record that I have had regard to the relevant similarities and differences in determining a fair and proportional assessment of sentence for the present offender. I do specifically note, however, that the present offender compares more favourably to Eken and Potrus when considering the combined effect of the mitigating factors of prior record, remorse and rehabilitation prospects. Totality 63It is necessary to first determine the individual sentences for each offence and then to consider the question of totality. It was conceded by Mr Gordon that some partial accumulation was appropriate but submitted that it should be minimal. I accept that the events in the departure hall followed quite soon after the events at Gate 5 and that there is force in the submission that the latter was almost a continuation of the former. They were, however, two distinct offences committed some distance apart. A modest degree of accumualtion is appropriate. This will require a further adjustment to the statutory proportions. 64I propose to impose a fixed term of imprisonment for the affray offence as there would be no utility in setting a non-parole period. I refer to, but do not repeat, what I said about fixed terms of imprisonment in sentencing Pirini: R v Pirini , supra, [2011] NSWSC 1395 at [73]. The fixed term I propose will be the equivalent of the full term of the sentence, not what would have been a non-parole period. SENTENCE Convicted. Affray: Sentenced to a fixed term of imprisonment for 2 years 2 months commencing 3 June 2009 and expiring 2 August 2011. Riot: Sentenced to imprisonment with a non-parole period of 2 years 8 months and a balance of term of the sentence of 2 years 1 month. The sentence is to date from 3 December 2009. The offender will be eligible for release on parole upon the expiration of the non-parole period on 2 August 2012. The total term will expire on 2 September 2014. That is an aggregate term of imprisonment for 5 years 3 months with a minimum period to be served of 3 years 2 months before parole eligibility. The sentence for the affray has been reduced from one of 2 years 9 months and the sentence for the riot of 4 years 9 months has been reduced from one of 6 years on account of the offender's willingness to have pleaded guilty to these offences 6 months before his trial. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2012