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Supreme Court of New South Wales=HIS HONOUR: Ishmail Eken 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 acquitted of a separate charge of affray which was alleged to have occurred shortly before the riot. Usama Potrus was also found not guilty of murder and manslaughter but guilty of riot. He was not charged with the affray. The 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.

R v Eken; R v Potrus [2012] NSWSC 2 (9 January

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2012)

Last Updated: 17 January 2012

Supreme Court

 

Case Title:
R v Eken; R v Potrus
Medium Neutral Citation:
[2012] NSWSC 2
Hearing Date(s):
17 November 2011
Decision Date:
09 January 2012
Jurisdiction:
Common Law – Criminal
Before:
R A Hulme J
Decision:
Each offender convicted and sentenced to imprisonment for 5 years with a non-parole period of 3 years
Catchwords:
CRIMINAL LAW – sentence – riot – violent fight between rival bikie gang members at airport – serious offence but not worst case category – conviction after protracted trial – acquittal for murder and manslaughter – offers to plead guilty rejected by prosecution – deterrence – special circumstances – parity with co-offenders
Legislation Cited:
Cases Cited:
R v Aouli [2011] NSWSC 1393
R v Costa [2011] NSWSC 1392
R v La Rosa [2011] NSWSC 1394
R v Pirini [2011] NSWSC 1395
Texts Cited:
Category:
Sentence
Parties:
Regina
Ishmail Eken
Usama Potrus
Representation
– Counsel:
Ms N Adams with Ms H Roberts (Crown)
Mr P Young SC (Eken)
Mr R Driels (Potrus)
– Solicitors:
Solicitor for Public Prosecutions
Purcell Felton Lawyers (Eken)
Barakat Lawyers (Potrus)
File number(s):
2009/60143; 2009/1573322009/58679
Publication Restriction:
Non-publication of anything that would identify witnesses known as SP and AL

JUDGMENT

 

  1. HIS HONOUR: Ishmail Eken 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 acquitted of a separate charge of affray which was alleged to have occurred shortly before the riot.

 

  1. Usama Potrus was also found not guilty of murder and manslaughter but guilty of riot. He was not charged with the affray.

 

  1. The 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

 

  1. By way of background, it was an agreed fact in the trial that there was ongoing hostility between two rival motorcycle gangs, the Comancheros and the Hells Angels, and that each of the accused were aware of this state of affairs. 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.

 

  1. 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. Both offenders were members of the Comancheros. Indeed, Mr Eken was wearing a t-shirt with a prominent Comanchero logo at the time. Some of the participants were not actually members of either gang but were either nominee members or associates of members. However, for convenience, I will refer to people as being a member of one or the other.

 

  1. Mr Eken was in Melbourne over the weekend of 21-22 March 2009 with some other Comanchero members. He, together with Hawi, Christian Menzies, Pomare Pirini and Maher Aouli, caught Qantas flight 430 back to Sydney. The flight left Melbourne at about midday on 22 March 2009. Mr Eken was sitting in a middle row towards the back of the plane with Hawi to his left and Menzies to his right. Pirini sat in a row immediately in front of them and Aouli sat a number of rows further forward.

 

  1. Derek 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. When seated beside Mr Eken, Hawi was heard to say, “Get the guys to meet us at the other end”. Mr Eken contacted Daux Ngakuru, a senior Comanchero office holder, and then sent him a text message before the flight left Melbourne. There was no evidence as to the content of these communications but Mr Young, senior counsel for Mr Eken, accepted that it was obvious what their purpose was – to have Comanchero members come to the airport.

 

  1. There followed a series of communications between Comanchero members in Sydney which culminated in seven of them proceeding with haste to the airport: Mr Potrus took his mother’s car with SP and AL (publication of their names has been suppressed) and Zoran Kisacanin as his passengers; Farres Abounader drove another car with Frank LaRosa and Tiago Costa as his passengers. SP said that Mr Potrus told him, “We’re going to the airport to pick up Mick and some of the other boys on the plane. … (T)here was maybe some Hells Angels on the same flight or going to be at the airport at the same time” (T2613).

 

  1. Seven 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.

 

  1. The 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. Mr Potrus had been through security screening but he looked around to see Abounader hanging back and he returned to join him.

 

  1. There was no dispute in the trial that Abounader was armed with a knife and it is reasonable to infer that he did not go through to Gate 5 because he feared it would trigger the walk-through metal detectors. Given there was such haste for the men to get to the airport to meet the arriving flight, it would be surprising if Abounader did not explain this to Mr Potrus; if he did not know already that Abounader was armed.

 

  1. Two 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.

 

  1. Security camera footage showed that Potrus and Abounader waited in the area immediately outside the security screening area at the western end of the terminal, near to where arriving passengers emerge from the sterile area. The five Hells Angels members milled around behind the check-in counters about 60 metres to the east of that location. There is no direct evidence that Potrus and Abounader were aware of the presence of the Hells Angels or vice versa.

 

  1. The affray, for which Mr Eken was acquitted, occurred in the immediate vicinity of Gate 5 after the arriving passengers disembarked. It is unnecessary to go into the detail of what occurred aside from saying that there was a fight involving three Hells Angels, Wainohu, Baker and Padovan, and a number of the Comancheros. The fight commenced very shortly after Hawi and Wainohu came face to face after disembarking from the plane. The jury were satisfied of the involvement in the use, or threatened use, of violence by Hawi, Menzies and Kisacanin, given the verdicts of guilty of affray they returned in respect of them. SP and AL, Pirini, Aouli, La Rosa and Costa had earlier pleaded guilty to affray in respect of this incident. The Crown did not contend that Messrs Wainohu and Baker were aggressors. It did in respect of Mr 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.

 

  1. It was Mr Eken’s case that he played something of a peacemaker role during the affray at Gate 5. AL said that he heard someone say words to the effect,“Not here, let’s go outside” . There was evidence that SP had told a police officer in July 2009 that Mr Eken had settled things down and had said, “Not in the airport” . Some of the eyewitnesses heard someone say “Let’s take it outside” or the like. The Crown, on the other hand, submitted that if the jury accepted any of this evidence, they should consider that Mr Eken was not trying to discourage fighting; he was simply counselling the participants to do it elsewhere.

 

  1. There 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, Mr Eken must have as well.

 

  1. Whilst the jury was not satisfied beyond reasonable doubt of Mr Eken’s guilt in respect of the affray, and so he is to be regarded as innocent of that offence, the fact that he undoubtedly witnessed the violence at Gate 5 cannot be ignored. It must have been the freshest thing in his memory as he emerged, with his fellow gang members, into the departure hall. A feature of what he witnessed was the preparedness of at least some of his companions to use or threaten violence in a public place in front of many members of the public, including children. The accounts given by many of those who gave evidence about the affray made it abundantly clear that many were horrified and frightened.

 

  1. From 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. Mr Eken was a member of the Comancheros. He was subject to its strict rules requiring loyalty and prohibiting cowardice. There was a prospect, of which he was aware soon after boarding the flight in Melbourne, of a confrontation with one or more Hells Angels upon arrival in Sydney. Given the history of hostility between the two gangs it was a reasonable possibility that such a confrontation would involve violence. On Hawi’s command, he assisted in summoning reinforcements. A violent fight broke out between the Comancheros and the Hells Angels soon after the flight landed. Mr Eken was a witness to this but did not participate and may have tried to encourage the participants not to fight in that particular location. After it had ended, it was apparent to him, 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.

 

  1. Mr Potrus was a full Comanchero member as well. He had been summoned to attend the airport and he did so as a matter of urgency. He was made aware that fellow Comanchero members, including the national president, were arriving on a flight from Melbourne and that there was a prospect of Hells Angels being present. Again, given the history of hostility, it must have been obvious that if any confrontation occurred, there could be violence. Mr Potrus did not witness what occurred at Gate 5 but he must have been made aware of it, at least in a general sense, very soon after.

 

The confrontation in the check-in area

 

  1. The 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. The Crown accepted that Mr Eken was towards the back of the group.

 

  1. There 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. Such an explanation strained credulity. There were escalators immediately to the right as the ten Comancheros emerged into the departure hall. Potrus and Abounader had been waiting in the immediate vicinity of those escalators for several minutes. There were signs indicating that those escalators could be used to go downstairs to the arrivals hall. The escalators at the eastern end of the building were about 140 metres away. The cars were parked immediately outside the arrivals hall. Potrus and Abounader were the owners of the cars and it may be assumed that they had an interest in knowing where they were and how to get back to them. Mr Eken, and others, had luggage to collect. Hawi and Menzies, the only accused to give evidence, said that they were intent on getting out of the airport (T3784; T3995). They had abandoned any thoughts of collecting their luggage; they just wanted to get to the cars and get away, given what had occurred at Gate 5. How 12 men were going to get away in 2 cars was not explained. Mr Eken had arranged to be met by his girlfriend. What became of that plan was not explained either.

 

  1. It seems highly likely that the Comancheros walked deliberately towards the waiting Hells Angels; probably because Abounader and Potrus had become aware of their presence. However, it is unnecessary to decide this issue. What is of significance is what occurred when the two groups came together.

 

  1. If 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. Kisacanin peeled off and ran between the check-in counters and then continued running east in an apparent attempt to approach the Hells Angels from a different angle; something of a flanking manoeuvre. Very 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.

 

  1. A 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. Some counsel for Comanchero accused suggested that the jury could infer that telephone communications from Hells Angels at Gate 5 to Hells Angels waiting in the departure hall immediately after the affray had ended were for the purpose of alerting them to the presence of the Comancheros who would soon emerge into the departure hall. That may well be so. But there was no movement by those waiting Hells Angels towards where the Comancheros would emerge. They simply remained where they were which was in an area where arriving passengers were unlikely to go. The security camera footage did not show them making any movements which could suggest that they planned to attack the Comancheros prior to the Comancheros rushing towards them.

 

  1. I have mentioned that much was sought to be made on behalf of the Comanchero accused of Anthony Zervas attacking Hawi and that this initiated the violence. It was common ground that he did attack Hawi. He had high levels of illicit drugs in his system and an incident two days earlier demonstrated his propensity to act with impetuous violence. Attacking Hawi was foolish – Hawi was 178 cm tall with a heavy muscular build while Mr Zervas was 161 cm tall and weighed only 58 kg. I am not persuaded that the violence was initiated by this attack. The fact is that violence was inevitable as the 12 Comancheros hurried towards the 5 Hells Angels. Anthony Zervas simply tried to make a pre-emptive strike.

 

  1. It was the evidence of SP and AL (but not that of anyone else in the vicinity) that Abounader called out something to the effect that Anthony Zervas had a gun as he approached Hawi. There was a contention that this prompted the Comancheros to “run for their lives”. That contention ignored SP’s evidence that he realised immediately when Anthony Zervas’ hands became visible that he did not have a gun, but had a sharp instrument, a pair of scissors. There was no evidence of any guns being at the airport that day.

 

  1. I am satisfied that Anthony Zervas was then very quickly pursued, put to the ground, bludgeoned with one or more bollards and stabbed to death. Hawi has been found guilty of his murder. All of the other Comanchero accused were acquitted of murder. Some 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.

 

  1. In order to find Mr Eken and Mr Potrus guilty of riot, the jury must have been satisfied beyond reasonable doubt that they were among twelve or more persons who had a common purpose to fight and that they 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.

 

  1. The 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 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. Another 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 near the front glass wall of the terminal, 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.

 

  1. The 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 their bags in], 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).

 

  1. The 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). Mr Eken acknowledged in an affidavit which was tendered in the sentence proceedings that“the witnesses to the events would have been shocked and disturbed and that they may suffer well into the future as a result of the incident” .

 

Eken

 

  1. SP gave evidence of seeing Mr Eken involved in fighting in front of the check-in counters with Peter Zervas and another one of the Hells Angels (T2623). It would seem that this fighting was confined to punching and wrestling; there is no suggestion that he was involved in using any implement as a weapon. SP said that Mr Eken was on the ground at some stage, having either fallen or been knocked down. This could have been in the area where his small brown bag was later found, between two of the check-in counters. In his closing address to the jury, Mr Young did not dispute that Mr Eken was involved in some fighting. His case was put in terms of him having only acted in self-defence – “He was fighting someone off so he could get away” (T4558) – a proposition rejected by the jury beyond reasonable doubt.

 

  1. Mr Eken left the scene in a taxi with some of the other Comancheros. They were arrested a short time later at Brighton-Le-Sands. Mr Eken’s t-shirt was ripped and subsequent analysis revealed the DNA, most likely from blood, of one of the Hells Angels in two locations.

 

  1. Mr Eken was charged with affray. He was remanded in custody until being released on bail on 15 June 2009. On 14 July 2009 he was charged with murder, refused bail, and has remained in custody since. It is agreed that his sentence should be backdated to 19 April 2009 to give credit for this pre-sentence custody.

 

Potrus

 

  1. Mr Potrus lost his shoes during the riot: one was found between the check-in counters and he was seen on security camera footage to be carrying the other one. The witness with the two children described seeing three men passing in front of her, coming from the direction of where the deceased was lying on the ground. She said one of them had no shoes on. No-one else lost their shoes and so it is reasonable to infer that this was a description of Mr Potrus coming from somewhere near to where the fatal assault occurred. I note that the Crown did not suggest that Mr Potrus was directly involved in that assault.

 

  1. Potrus, Abounader, Costa and SP ran out of the terminal and, via a convoluted route, returned to the cars and made good their escape. Mr Potrus could be seen in security camera footage in the carpark lift carrying one of his shoes and wearing a singlet that was torn. He had clearly been involved in the fighting in some fashion. There was evidence from SP that he saw Mr Potrus fighting (T2622). In cross-examination he agreed that Mr Potrus had been hit and had fallen to the ground in the vicinity of where his shoe was later found. He also said that Mr Potrus had later complained of an injury to his jaw (T2909 – 2911). There was no medical evidence of any injury. The most there was on this topic was some vision of Mr Potrus rubbing his jaw when in the carpark lift. Mr Driels, counsel for Mr Potrus, as did other counsel, strongly challenged SP’s honesty and reliability as a witness. It does not seem to me to be safe to act upon it unless independently confirmed.

 

  1. Mr Potrus’ case was that he had simply gone to the airport to meet “his friends” and to take them home safely (T4506). If he was involved in any fighting, it was in self-defence. Clearly the jury rejected that case in relation to the riot charge.

 

  1. Mr Potrus was charged on 14 July 2009. He has been in custody since that time and so it would be appropriate to back-date his sentence to that date.

 

 

Outcomes in respect of others involved

 

  1. There 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. Yet to be sentenced.
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.
Usama Potrus
Acquitted of murder and manslaughter. Found guilty of riot.
Zoran Kisacanin
Acquitted of murder and manslaughter. Found guilty of riot and of affray (Gate 5). Yet to be sentenced.
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.
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.
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.
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.
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

 

  1. This was an unusual riot. Commonly a riot involves public disorder directed at the government, government agencies such as the police, or commercial institutions, or is prompted by racial and/or religious tensions. Substantial property damage and looting are often encountered. This riot was concerned with the continuation of ongoing hostilities between rival outlaw motorcycle gangs.

 

  1. There has been no suggestion that the riot was the subject of any real planning or premeditation. 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 the specific intention 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).

 

  1. As 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. They outnumbered their enemy by 12 to 5. 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 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.

 

  1. A matter that is particularly relevant to the assessment of 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 would easily forget the experience.

 

  1. In assessing the seriousness of the offence, I have had regard to the riot overall as well as to the actual role played by the offenders. I have borne in mind that the jury’s verdicts necessitate that I exclude from consideration any responsibility of Mr Eken and Mr Potrus in relation to the death of Mr Anthony Zervas. Neither Mr Eken nor Mr Potrus could be regarded as having played a leading, organisational or inspirational role. Moreover, whilst they were clearly involved in the fighting, there is no suggestion that they took up weapons as others did.

 

  1. I am satisfied that this was a serious example of an offence of riot. Indeed, Mr Driels, on a bail application, submitted that “whilst the matter is serious … it’s not the worst” (3.11.11 at 15.7). I accept that submission.

 

  1. Not every one of the Hells Angels and the Comancheros were actually involved in the fighting. Some were merely present and willing to assist if required while others were present and not involved at all. Only three of the Hells Angels and about half of the Comancheros, including Mr Eken and Mr Potrus, were involved in the actual use of violence. Subject to consideration of the matters which follow, a significant period of imprisonment is called for in respect of both offenders.

 

 

Subjective features – Eken

 

  1. Mr Eken was born in 1983 and was aged 26 at the time of the offence. He is the third eldest of five children. His childhood was uneventful. He was educated to Year 11 and then has been in employment “on and off” until he entered custody.

 

  1. He said in an affidavit that was tendered in the sentence proceedings that his father left the family and returned to Turkey when he was 6 and thereafter his eldest brother adopted a father figure role. This brother was sent to gaol for a lengthy period when Mr Eken was in his early 20’s which, he said, left him feeling that he had no male support.

 

  1. It was around this time that he was introduced by a friend to the Comancheros. He became a nominee member in 2006 and a full member in 2007. He said it “felt as though it was a family kind of thing” and he felt “comfortable and secure because [he] was part of a brotherhood” . He claimed that he was not a particularly active member and was not involved “in the managerial or any other business of the club” . He attended meetings only when he felt like going and he enjoyed the social aspect of the club. He said that he left the club after going to gaol and was successful in applying to be moved in the gaol away from other members.

 

  1. The evidence concerning the latter was disputed. Detective Sergeant Walpole gave evidence of inquiries he had made of Corrective Services NSW. He referred to the situation concerning Menzies where there was both police intelligence and Corrective Services records that confirmed he had left the Comancheros and had applied to be moved to another gaol. In the case of the present offender there was “zero intelligence” and no Corrective Services records of any application to be moved away from fellow Comanchero members. Visitor records indicated that twice in the previous six weeks Mr Eken had received visits from persons who were Comanchero members with criminal records. In cross-examination it was suggested that these men were known to Mr Eken since before his Comanchero days. Detective Walpole did not know one way or the other. No evidence was proffered to support the suggestion. The Crown Prosecutor made the point that regardless of whether Mr Eken’s association with these men predated his Comanchero membership, it remained significant in terms of his rehabilitation prospects that he was still associating with Comanchero members with criminal records.

 

  1. Mr Eken said that at the time of his arrest he was a full-time carer for his disabled brother, Emre. Emre, who is now aged 23, was born with cerebral palsy and has a severe intellectual disability. He requires assistance with all aspects of daily living. He attends the Wesley Life Skills program at Granville for 6 hours a day on 4 days of each week but is otherwise, presumably, at home for the rest of the time. Mr Eken’s mother has a severe and chronic psychiatric illness and is unable to provide adequate care for Emre on her own. Since the offender has been in gaol his sister, Nurten, has ceased full-time work in order to assist. Mr Eken’s evidence, which was not challenged, was that his mother and sister are experiencing stress while he is absent and unable to fulfil the important role in the family that he carried out in relation to Emre prior to his incarceration.

 

  1. Mr Eken said that he has spent his time in custody attempting to remain fit and by reading religious texts. He has attained a position of head sweeper. Upon his release he plans to return to live with his family; find employment in the construction industry; and assist with the care of his brother. His ultimate goal is to start a family business and try to provide for his family.

 

Criminal history

 

  1. Mr Eken has a criminal history which commenced with an offence of robbery in company. For that he received a community service order in the Children’s Court in 1998. He was fined for an offence of goods in custody in 2002. Possession of steroids in 2006 brought a fine and a bond. Whilst this history is relatively modest in length, it denies to Mr Eken the leniency that could otherwise have been afforded to a person with no prior convictions.

 

Remorse

 

  1. Mr Eken’s affidavit includes reference to his “attitude to the offence”. He said that he is “devastated” by the behaviour at the airport and acknowledges that his behaviour and that of the others led to the death of another human being, something for which he is extremely sorry. He also appears to be quite perceptive in acknowledging that his membership of the Comancheros meant that other people’s problems became his own and led to his completely unnecessary involvement in activities which had significant effects on other people and the community as a whole. There was no challenge to this evidence. I accept that he is genuinely remorseful.

 

Rehabilitation prospects

 

  1. Mr Young submitted that Mr Eken’s rehabilitation prospects were “reasonable”. He noted in this context that he has a family to whom he intends to return. I note as well that he appears to be committed to the care of his brother and appears to be concerned about the stress that his absence has caused to other members of his family. This has been his first experience of custody and it is to be hoped that this, and the other factors I have just mentioned, have provided him with the motivation not to offend in the future. There is, however, a concern about his continued association with Comanchero members and I am not persuaded by his claim that he is no longer a member. I conclude that Mr Young’s assessment of Mr Eken’s rehabilitation prospects as “reasonable”, as opposed to “good”, is a realistic one.

 

Discount for willingness to plead guilty

 

  1. Mr Eken was committed for trial on 23 September 2010. On 1 November 2010 his solicitors wrote to the Director of Public Prosecutions conveying an offer to plead guilty to manslaughter in full discharge of the indictment. Surprisingly in my view, the offer was refused. On 16 May 2011 there was a renewed offer to plead guilty to manslaughter but it was again refused.

 

  1. It is common ground that some discount should be allowed to Mr Eken for his willingness to plead guilty. Pomare Pirini pleaded guilty to manslaughter in this Court on 16 December 2010. Negotiations in relation to that plea were probably in train in the November-December 2010 period in which the present offender’s offer was first advanced. It seems fair to allow the same discount as was allowed to Pirini, that is, 20 per cent.

 

Onerous custodial conditions during trial

 

  1. A submission was made that I should take into account certain onerous custodial conditions that Mr Eken has experienced. This is confined to the time he has been required to attend court for his trial. Normally, as the Crown Prosecutor rightly pointed out, 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. This involved Mr Eken 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 for an extended period. 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

 

  1. It was submitted by Mr Young, 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 Mr Eken 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, that after Mr Eken’s release from his first experience of gaol that he re-establishes a normal lawful community life, lives up to his undertakings to care for his brother and find employment, and avoids any further involvement with outlaw motorcycle gangs and their members.

 

 

Subjective features – Potrus

 

  1. Mr Potrus was born in Iraq in 1983 and so he was also aged 26 at the time of the offence. He is the eldest of three children. His family fled Iraq in 1990 and eventually found their way to Australia in 1993.

 

  1. He left school at the age of 16 and has been in employment from that time until he entered custody.

 

  1. The offender’s sister described him in her affidavit as non-violent, respectful and hard-working.

 

  1. A good friend and work-mate, Mr Charlie Ciantar, said in an affidavit that the offender had expressed a desire to “get back to work, settle down and live a good law abiding life” . Mr Ciantar works as a contract courier driver for a discount electrical retail outlet. The offender worked with him prior to going into custody and there is an offer of the same work being available upon his release. Mr Ciantar vouched for the offender being an honest, responsible and hard-working employee.

 

  1. Mr Steve House, who is the chaplain to the inmates and staff at the Metropolitan Reception and Remand Centre at Silverwater, provided a testimonial. He stated that the offender is “a welcoming, helpful and encouraging inmate” . He attends the mid-week bible study group and Sunday church services.

 

Criminal history

 

  1. Mr Potrus has no previous criminal convictions. This, together with his prior good character, are mitigating features that should be taken into account in his favour.

 

Remorse and rehabilitation prospects

 

  1. The offender’s father’s affidavit records that the offender is aware of the worry and hurt he has caused to “all persons involved in this matter” as well as to his family. He has “promised … that he will never again put himself in this position again” . He has expressed a desire to work, settle down and live a meaningful life. He is welcome to resume living in the family home upon his release.

 

  1. The offender’s sister believes that he has learnt from his time in custody. She said that he has promised that “he will not be involved in anything like that [which] has caused him to be in prison” .

 

  1. Mr Ciantar expressed the opinion that the offender’s experience in gaol has had a positive effect upon him and also that the offender would not re-offend.

 

  1. Mr House thinks that the offender appears “extremely remorseful for his actions, the pain and stress it has caused his family, friends, loved ones and the community” .

 

  1. It is a positive sign that the offender has expressed such thoughts to these people. However, whether he has truly accepted responsibility for his actions remains a difficult finding to make. It is hard to say when the evidence is confined to a few sentences in affidavits and a testimonial, some being reports of what the offender has said and others being expressions of the author’s personal opinion, with nothing direct from the offender himself.

 

  1. I am prepared to accept that the offender might be remorseful. I do accept that his past history, family support and employment prospects are positive indicators for his rehabilitation prospects. On the other hand, there is nothing to indicate that he understands the negative aspects of his membership of the Comanchero gang, or that he has any plans to renounce it. His rehabilitation prospects can be assessed as no more than “reasonable”.

 

Discount for willingness to plead guilty

 

  1. As with Mr Eken, solicitors for Mr Potrus wrote to the Crown in November 2010 conveying an offer to plead guilty. In his case it was an offer to plead to riot. Although it was not offered, there was an implicit invitation to the Crown to indicate whether it was prepared to accept a plea to manslaughter. Remarkably, in my view, the Crown replied that it would only accept a plea to murder.

 

  1. For the same reasons as I indicated in the case of Mr Eken, it is appropriate to allow a reduction of sentence of 20 per cent for the willingness of Mr Potrus to plead to the charge that he was subsequently convicted of.

 

Onerous conditions of custody

 

  1. Mr Driels made a submission along the same lines as that made by Mr Young about the unusually onerous conditions of his client’s custody over the 6 months or so of the trial. He also referred to the 3 months that Mr Potrus was required to attend at the committal hearing. As I have said, this is a relevant, although not major, consideration and I will take it into account.

 

Special circumstances

 

  1. Mr Driels also submitted that there should be a finding of special circumstances because this was his client’s first offence and that an extended period of supervision would serve as a reminder to him of the consequences that would befall him if he re-offended in the future. I do not think there is anything special about those circumstances. I do, however, think that an extended period under parole would serve a useful purpose in assisting him to resume his previous lawful lifestyle but particularly in ensuring that he avoids association with undesirable outlaw motorcycle gang members.

 

 

Deterrence

 

  1. Another important matter that must be factored into the assessment of the appropriate sentence is deterrence. Personal deterrence cannot be ignored, given the qualified findings I have made as to both offenders’ rehabilitation prospects.

 

  1. More important, however, is general deterrence; that is, the deterrence of others. It was brazen and arrogant for the offenders and their Comanchero colleagues to continue their dispute with the Hells Angels by carrying out a violent attack in such a public place as an airport terminal.

 

  1. It is a regrettable and distressing fact of modern life 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. This is not the only reason, but is a major one, why I cannot accede to the submissions of counsel for each offender that they should be sentenced so as to facilitate their immediate or imminent release on parole.

 

 

Parity

 

  1. The only two offenders who have been sentenced for riot in respect of this matter are SP and AL. They pleaded guilty and were sentenced in the District Court. It has become apparent that they were sentenced on an incorrect factual basis; that they were not involved in perpetrating any actual violence but only for threatening violence. The elements of the offence of riot require that, in a context of 12 or more people using or threatening violence, the person under consideration actually used violence. This is something that the Crown had overlooked until part way through the trial, explicable perhaps because of an error in one of the criminal practice and procedure services.

 

  1. It was an agreed fact in relation to both SP and AL that they had moved aggressively with the other Comancheros to confront the Hells Angels behind the check-in counters. Thereafter, SP did not assault anyone and AL picked up a bollard but threw it away, rather than using it offensively. His Honour Judge Charteris gave their subjective cases the same mitigating weight. Some aspects were more favourable than for the present offenders while others were not. A starting point of 6 years imprisonment for the charge of riot was adopted which was then discounted for the pleas of guilty and assistance to authorities. The total sentences imposed, involving partial accumulation with sentences for the affray, were 3 years with non-parole periods of 9 months.

 

  1. I do not propose to adopt the same starting point as was applied by Judge Charteris in respect of SP and AL for riot. It was the same riot, of course, but their role was less than that of the present offenders. I will, however, bear their sentences in mind.

 

  1. Costa, Aouli, La Rosa and Pirini were each sentenced upon their pleas of guilty to manslaughter and affray: R v Costa [2011] NSWSC 1392; R v Aouli[2011] NSWSC 1393; R v La Rosa [2011] NSWSC 1394; and R v Pirini [2011] NSWSC 1395. There was some variation in the facts of each case, both objective and subjective. The actual role they each played in the fighting was extremely minimal. They were dealt with on the basis that they were participants in a joint criminal enterprise to assault Hells Angels. Pirini confronted a Hells Angels member who was menacing him with a bollard but did not land a blow. Costa, Aouli and La Rosa were not involved in any fighting but acknowledged that they were willing to assist if required.

 

  1. The total sentences imposed upon these four men ranged from 6 years 2 months to 7 years 1 month with non-parole periods ranging from 3 years 6 months to 3 years 9 months. The maximum penalty for manslaughter is 25 years whilst the maximum for riot is 15 years. Manslaughter involves the unlawful taking of a human life whereas riot does not. On the other hand, Mr Eken and Mr Potrus played a greater physical role in what took place than did Aouli, La Rosa and Costa and, in my assessment, Pirini.

 

  1. Given that none of these offenders were sentenced for riot, no direct comparison of sentences is possible. It is difficult to compare a sentence for minimal involvement in a serious manslaughter to a sentence for actual involvement in a bad riot. Nevertheless, as the offences arose from the same incident it is appropriate to bear the other sentences in mind in order to maintain appropriate proportionality.

 

  1. Mr Driels submitted that I should also have regard to the sentences imposed upon Ovalle and Peter Zervas. I was told that they each pleaded guilty to affray in the Local Court and were sentenced as indicated in the table above. I was not given any detail as to the basis upon which the sentencing magistrates arrived at their decisions. The Crown Prosecutor told me that one factor taken into account in the disposition of Peter Zervas’ case was that there was extra curial punishment; a few days after the incident at the airport he was shot by someone believed to be a Comanchero and nearly died. Given the lesser offence for which they were dealt with, carrying a maximum penalty of 10 years and a jurisdictional limit in the Local Court of 2 years, it seems to me that the sentences imposed upon Ovalle and Peter Zervas are of very limited significance, if any at all.

 

  1. As between Mr Eken and Mr Potrus themselves, there is nothing really to distinguish in relation to the seriousness of their offence. Their subjective cases are, of course, different, but balancing all factors, it seems to me that they warrant the same mitigating weight. Neither Mr Young nor Mr Driels submitted that there should be any distinction between the two. I intend to impose identical sentences, subject only to differences in commencement dates.

 

 

SENTENCE – Eken

 

Convicted.

 

Sentenced to imprisonment comprising a non-parole period of 3 years and a balance of the term of the sentence of 2 years.

 

The sentence is to date from 19 April 2009. Mr Eken will be eligible for release on parole upon the expiration of the non-parole period on 18 April 2012.

 

 

SENTENCE – Potrus

 

Convicted.

 

Sentenced to imprisonment comprising a non-parole period of 3 years and a balance of the term of the sentence of 2 years.

 

The sentence is to date from 14 July 2009. Mr Potrus will be eligible for release on parole upon the expiration of the non-parole period on 13 July 2012.

 

In each case, that is a total sentence of 5 years. Without the offers to plead guilty which were rejected by the Crown, it would have been a sentence of 6 years 3 months.

 

 

 

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