One of two bikie members convicted of lesser charges over a fatal airport brawl had twice offered to plead guilty to manslaughter but was refused each time, a court has heard.
And his co-accused made an “implicit invitation” for the crown to offer him an opportunity to plead guilty to manslaughter, which was also refused.
Ishmail Eken smiled at Usama Potrus in the NSW Supreme Court on Monday when both received three-year minimum sentences for the lesser charge of riot.
With time already served in custody, Eken and Potrus could be free by April and July this year respectively.
The pair were among a dozen Comanchero bikie club members who squared off against seven Hells Angels members at Sydney Airport in March 2009 in a brawl that led to the death of Anthony Zervas, the brother of Hells Angel member Peter Zervas.
They were acquitted of murder and manslaughter in November but the jury found them guilty of riot.
On Monday in the Supreme Court, Justice Robert Allan Hulme said in his sentencing that Eken had offered in November 2010 and again in May 2011 to plead guilty to manslaughter.
The Director of Public Prosecutions (DPP) had refused both offers.
Justice Hulme also noted that counsel for Potrus had indicated they would accept an offer for him to plead to manslaughter.
“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,” Justice Hulme told the court.
“Remarkably, in my view, the crown replied that it would only accept a plea to murder.”
Four other Comancheros involved have previously pleaded guilty to manslaughter and have been sentenced.
Two more have pleaded guilty to riot and affray.
Eken and Potrus were among six other Comancheros and one Hells Angels member who went to trial, in a case that lasted five months.
The DPP was closed for the holiday break until Tuesday and NSW Attorney-General Greg Smith, formerly a deputy DPP, could not comment on Justice Hulme’s criticism.
“I’m on holidays, I’m not in position to comment,” Mr Smith told AAP.
“I haven’t followed it all for the last few weeks.”
Comanchero national president Mahmoud “Mick” Hawi, 31, was earlier found guilty of murdering Mr Zervas and will be sentenced at a later date.
Justice Hulme said the riot lasted for less than one minute in the domestic terminal but was something witnesses would never forget.
“For example, I very much doubt that the mother who cowered in fear trying to protect her infant children would easily forget the experience,” he said.
The bloody confrontation emerged from a chance encounter on a Qantas flight from Melbourne.
Hells Angels president Derek Wainohu was on the plane along with Eken, Hawi and three other Comancheros.
Both sides alerted their gangs via mobile phone to have reinforcements meet them upon their arrival in Sydney.
The fight began at the arrival gate and then spilled into the main terminal near the check-in counters.
Anthony Zervas died after he was stabbed, beaten and hit with bollards, the court heard during the trial, before he was left in a pool of blood near an entrance of the terminal.
Three other Comanchero gang members involved were found not guilty of Mr Zervas’ murder.
Hells Angel David Padovan was cleared of both riot and affray.
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