R v Hawi [2012] NSWSC 332

R v Hawi [2012] NSWSC 332

The offender, as national president of the Comancheros, initiated the affray by punching the Hells Angels president and led or authorised conduct that created a high possibility of a violent public confrontation. The Comancheros were the principal aggressors. Although the Court was not satisfied beyond reasonable doubt that the offender personally inflicted the fatal blows, it was satisfied that he was immediately present during the assault on Anthony Zervas and contributed to it either by attempting to join in or by being there in a way that authorised and approved the bludgeoning. Self-defence, provocation and duress were rejected; the killing was an act of retribution. The murder was...

Jurisdiction
Australia
Judgment Date
10 April 2012
Procedural Posture
Criminal Sentence for Affray and Murder / Sentencing After Jury Verdicts of Guilty
Outcome
The offender was convicted of affray and murder and sentenced to an aggregate term of imprisonment of 28 years 6 months with a non-parole period of 21 years 6 months.
Legal Topics
['murder' 'affray' 'outlaw Motorcycle Gangs' 'joint Criminal Enterprise' 'self Defence' 'provocation' 'duress' 'victim Impact' 'non Parole Period']
['criminal Law' 'sentencing'] ['murder' 'affray' 'outlaw Motorcycle Gangs' 'joint Criminal Enterprise' 'self Defence' 'provocation' 'duress' 'victim Impact' 'non Parole Period']

Case Brief

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Procedural Posture

Criminal Sentence for Affray and Murder / Sentencing After Jury Verdicts of Guilty

Legal Issues

  1. 1 ['What factual basis should be adopted for sentencing the offender for murder and affray.' 'Whether the offender was directly involved in the fatal assault on Anthony Zervas or otherwise contributed to it.' 'Whether the Comancheros or Hells Angels were the aggressors in the confrontation.' 'Whether claims or submissions based on self-defence, provocation or duress should be accepted on sentence.' 'What objective seriousness should be attributed to the affray and murder.' 'What mitigating subjective features, pre-sentence custody conditions, family hardship, prospects of rehabilitation and special circumstances should affect sentence.' 'Whether the sentence for murder should be accumulated upon the sentence for affray.']

Ratio Decidendi

The offender, as national president of the Comancheros, initiated the affray by punching the Hells Angels president and led or authorised conduct that created a high possibility of a violent public confrontation. The Comancheros were the principal aggressors. Although the Court was not satisfied beyond reasonable doubt that the offender personally inflicted the fatal blows, it was satisfied that he was immediately present during the assault on Anthony Zervas and contributed to it either by attempting to join in or by being there in a way that authorised and approved the bludgeoning. Self-defence, provocation and duress were rejected; the killing was an act of retribution. The murder was...

Court Disposition

The offender was convicted of affray and murder and sentenced to an aggregate term of imprisonment of 28 years 6 months with a non-parole period of 21 years 6 months.

Orders

  • ['On each offence, convicted.' 'For affray, sentenced to a fixed term of imprisonment for 3 years 6 months, dating from 16 May 2009 and expiring on 15 November 2012.' 'For murder, sentenced to imprisonment comprising a non-parole period of 21 years and a balance of term of 7 years, dating from 16 November 2009.'...