Aouli v R [2012] NSWCCA 104

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Aouli v R [2012] NSWCCA 104 Hearing dates: 21 May 2012 Decision date: 21 May 2012 Before: Allsop P at [1] Davies J at [14] Schmidt J at [15] Decision: Application for leave to appeal dismissed. Catchwords: CRIMINAL LAW - sentence - manslaughter and affray - public melee between rival motorcycle club members - accumulation of sentences - parity with co-offenders Legislation Cited: Crimes Act 1900, s 18(1)(b), 93C Criminal Appeal Act 1912, s 6(3) Category: Principal judgment Parties: Maher Aouli (Applicant) Regina (Respondent) Representation: A Francis (Applicant) F Veltro (Respondent) Kiki Kyriacou Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/148558 Decision under appeal Citation: R v Aouli [2011] NSWSC 1393 Date of Decision: 2011-07-15 00:00:00 Before: R A Hulme J File Number(s): 2009/148558

Judgment 1ALLSOP P: The applicant seeks leave to appeal from the sentence imposed by a judge of this Court for offences of affray under s 93C of the Crimes Act 1900 and manslaughter under s 18(1)(b) of the Crimes Act 1900. 2The submissions were directed principally to the question of the objective seriousness of the acts in relation to the affray and the approach of the sentencing judge in relation to those matters, in particular how the applicant's culpability should be viewed by reference to two of his co-offenders. 3The applicant was a member of the Comancheros motorcycle gang, who engaged in a brawl with members of the Hells Angels at Sydney airport on 22 March 2009. A member of the Hells Angels, Mr Anthony Zervas, was killed on that day, being stabbed and beaten to death with a metal bollard. The applicant did not inflict any of the violence. 4Sentences were imposed on the applicant as follows: s 93C, two years and five months imprisonment to commence 27 March 2009, being the date of the first incarceration; and for manslaughter, non-parole period of three years with a balance of term of two years and eight months to commence from 27 September 2009. These two sentences saw but six months accumulation for the affray. 5The application is essentially, as I said, one of parity by reference to the sentences imposed on the applicant for the affray and the accumulation. The co-offenders, Mr Pirini and Mr La Rosa, were sentenced to respectively as follows: Mr Pirini, two years and two months for the affray and three years non-parole plus three years balance of term for the manslaughter; and Mr La Rosa, two years and four months for the affray and three years and three months non-parole, three years and four months balance of term for the manslaughter. Different discounts for the pleas were given by the sentencing judge. 6In my opinion, there are no reasonable prospects of success in the appeal. The small differences between the three offences were explained carefully by the sentencing judge at paras [38] to [40], and in particular [84] and following of his Reasons for Judgement. It is undoubted that the terms of s 93C in relation to the offence required in terms that the conduct of the two or more persons taken together must be considered as the purposes of sub-s (1). His Honour said the following: "[38] In the light of submissions that were made on the offender's behalf by Ms Francis of counsel, it is important to also recognise that the agreed facts are that the offender threatened unlawful violence 'along with his fellow Comanchero members'. In the light of this, an assessment of the objective seriousness of the offence cannot be made solely upon an examination of the actual role played by the offender. The 'conduct of them taken together ... must be considered': s 93C(2). [39] I acknowledge that the affray was relatively short-lived and that the offender's role was less than that of other participants. He did not engage in any of the physical violence. These features were at the heart of the submission by Ms Francis that if this was the only offence for which he was to be dealt with, it would not attract a full-time custodial sentence. [40] I do not accept that submission. The offence involved the offender engaging in conduct with nine of his Comanchero associates that struck fear in a significant number of members of the public in a place where they were entitled to feel safe and secure. It was an agreed fact that there were a large number of persons in the vicinity and that they included children and elderly people. It cannot be ignored, as well, that the offender played a role in having further Comanchero members attend the airport, adding numbers to the five who were on the flight. The matter is of quite some seriousness." 7He went on to say the following, at para [83] and following: "[83] I do not intend to isolate each and every one of the similarities and differences between the present case and those concerning Mr Pirini and Mr La Rosa. Three matters do, however, stand out. [84] The first is that the offender was involved in the activity that brought about the attendance at the airport of greater numbers of Comancheros. He was directed by Mr Hawi to 'call other Comanchero to attend' the airport. He called Mr Abounader before the flight took off in Melbourne. By way of contrast, Mr Pirini was not involved in summoning reinforcements. He was generally aware of the hostility directed towards Mr Wainohu, but seems to have been somewhat ambivalent about it, did not participate in it, and slept for most of the flight. [85] The second matter is that in the affray, unlike Mr Pirini, but like Mr La Rosa, the offender was part of the moving group of Comanchero participants but was not otherwise responsible for any physical act of violence. This is not a point of very great distinction. The seriousness of the offence also lies in a number of other factors which I have discussed earlier and, although Mr Pirini was physically involved, it was to a relatively minor extent ('scuffles'). [86] The third matter is more significant. In respect of the manslaughter, Mr Pirini and Mr La Rosa were parties to a joint enterprise to physically assault Hells Angels members. Mr Pirini was directly involved in a fight with one Hells Angels member, albeit in a defensive way and he did not land a blow. He was otherwise willing to assist as required. Mr La Rosa did not physically participate at all, but he, too, was willing to assist as required. The agreed facts in respect of the present offender, on the other hand, are that he was a participant in a joint enterprise to assault by way of intimidation, not physically, and he was not willing to assist in any physical assault. [87] I do not regard the seriousness of the affray insofar as it concerns the offender as being appreciably different from the assessment I made with respect to Mr Pirini and Mr La Rosa. I do, however, find that the seriousness of the manslaughter offence for him is less than it was in respect of those two. The Crown accepted that this was so. " 8Those reasons reflect a clear, precise and careful consideration of the circumstances of the offence and of the offenders. 9Elsewhere in the reasons the learned sentencing judge dealt with other objective and subjective factors bearing on the criminality of what occurred. I should add that at [47] and [48] the learned sentencing judge said the following: "[47] It is appropriate that I reiterate some other things I said in the course of sentencing Mr Pirini and Mr La Rosa. 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. This includes those who are prepared to associate themselves with such violence, even though not directly participating. [48] 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 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." 10It was submitted that there was an error in sentencing principle by using what was referred to as common purpose principles. In my view no error of any kind has been displayed. The learned sentencing judge dealt with the objective circumstances of the fear that could have been and was engendered by the conduct. It was accepted in the plea that the plea did not go to intention. I do not see how sentencing principles for s 93C would require the learned sentencing judge to do other than examine the facts of the affray with the care he did and reach an evaluative conclusion as to the respective culpability, which he did. 11No submissions were put in relation to the sentence individually for the manslaughter. It really is a question of accumulation of the two sentences bearing in mind what is said to be the misapprehension of the participation of the applicant in the first. 12Whilst the applicant did not actually inflict any actual violence and his plea should be taken in the limited way that it was intended, there was undoubtedly the likelihood and fact of significant fear being engendered in members of the public and the matters to which his Honour referred at [47] and [48] are indeed apposite. 13If there were any doubt about there being any error about the way his Honour approached it, in the light of s 6(3) of the Criminal Appeal Act 1912 no lesser sentence is warranted. In my view, the sentences imposed by his Honour individually and as accumulated were reasoned, careful and moderate. I would dismiss the application for leave to appeal. 14DAVIES J: I agree. 15SCHMIDT J: I agree. 16ALLSOP P: The order of the Court is: application for leave to appeal dismissed.