Hohaia v The Queen

[2015] NSWCCA 91

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hohaia v R [2015] NSWCCA 91

Hearing dates:

2 April 2015

Decision date:

11 May 2015

Before:

Simpson J at [1]; Harrison J at [42]; Adamson J at [43]

Decision:

(1)  The time within which to file an application for leave to appeal extended to 28 June 2013;

(2)  Leave to appeal granted;

(3)  Appeal allowed, sentence imposed in respect of the charge of murder set aside;

(4)  Applicant sentenced to imprisonment for 24 years commencing on 4 December 2003 and expiring on 3 December 2027, with a non-parole period of 18 years, expiring on 3 December 2021, with a balance of term of 6 years.

Catchwords:

APPEAL - sentencing - murder - robbery in company - “Muldrock error” - consideration of subjective circumstances and rehabilitation of applicant - appeal allowed - applicant re-sentenced

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, s 44(2), s 54A(2), s 54B
Crimes Act 1900 (NSW), s 18, s 19A(1), s 59, s 97(1)
Criminal Appeal Act 1912 (NSW), s 6(3), s 10(1)(a)
Criminal Appeal Rules, r 3B(1)(b)

Cases Cited:

BP v R [2010] NSWCCA 159; 201 A Crim R 379
Kentwell v The Queen [2014] HCA 37; 313 ALR 451
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
R v Way [2004] NSWCCA 131; 60 NSWLR 168

Category:

Principal judgment

Parties:

John Hohaia (Applicant)
Regina (Respondent)

Representation:

Counsel:
B Rigg (Applicant)
T Smith (Respondent)

Solicitors:
S E O’Connor - Legal Aid NSW (Applicant)
C Hyland - Solicitor for Public Prosecutions (Respondent)

File Number(s):

2005/2953

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Criminal List

Citation:

Regina v Abdulkader and Hohaia [2006] NSWSC 866

Date of Decision:

05 September 2006

Before:

Kirby J

File Number(s):

2005/2953

Judgment

1. SIMPSON J: On 15 February 2006 the applicant and another man, Mostafa Abdulkader, were arraigned in the Supreme Court on an indictment that charged each with one count of murder and one count of robbery in company, both committed on 3 December 2003. The indictment named the victim of both offences as Alexander Szirt. Both accused entered pleas of not guilty to both counts and a jury trial followed. On 21 March 2006 the jury returned verdicts of guilty against both accused on both counts. The maximum sentence applicable to an offence of murder is imprisonment for life: Crimes Act 1900 (NSW), s 18 and s 19A(1). Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”), a standard non-parole period of imprisonment for 20 years is prescribed. In respect of the offence of robbery in company, the maximum penalty prescribed is imprisonment for 20 years: Crimes Act, s 97(1). No standard non-parole period is prescribed.

2. On 5 September 2006 Kirby J sentenced both offenders. He sentenced the applicant, on the murder count, to a term of imprisonment of 24 years commencing on 4 December 2003, with a non-parole period of 18 years, which will expire on 3 December 2021. On the robbery in company count he sentenced the applicant to imprisonment for a fixed term of 18 months, also commencing on 4 December 2003, and therefore wholly subsumed in the murder sentence.

3. The applicant had previously entered a plea of guilty to a further offence, of assault occasioning actual bodily harm, committed on 15 September 2003, three months before the murder. This offence carries a maximum penalty of imprisonment for 5 years: Crimes Act, s 59. Again, no standard non-parole period is prescribed. On this charge, Kirby J sentenced the applicant to imprisonment for a fixed term of 9 months, also to be served concurrently with the other two sentences.

4. On 28 June 2013 the applicant filed an application for leave to appeal against the severity of the sentence imposed in respect of the murder count. That was 7 years and 3 months after sentence was imposed. The sole ground of the proposed appeal is:

“His Honour erred in the way the applicable standard non-parole period was taken into account.”

Since the Criminal Appeal Act 1912 (NSW) and the Criminal Appeal Rules prescribe time limits for filing such an application (28 days after sentence in the case of a notice of intention to apply for leave to appeal: Criminal Appeal Act, s 10(1)(a); 3 months after sentence in respect of an application for leave to appeal: Criminal Appeal Rules, r 3B(1)(b)), the applicant also applies for an extension of time in which to file the relevant application.

5. The Crown has conceded error as asserted in the ground. Initially, the Crown opposed the grant of an extension of time, citing the length of delay involved, and the absence of any adequate explanation for that delay. However, after the decision of the High Court in Kentwell v The Queen [2014] HCA 37; 313 ALR 451 was delivered, the Crown position softened somewhat, although it fell short of consenting to the application. Given the Crown’s concession of error, it is unnecessary to take further time on this issue. In my opinion, the extension of time sought ought to be granted.

The facts of the offences

6. The following account of the offences is drawn from the facts found by Kirby J for the purpose of sentencing.

7. The events that culminated in the murder of Alexander Szirt began on Tuesday, 2 December 2003. During that day, at his mother’s home in Lucerne Street, Belmore, and in company with a young woman, the applicant and Mr Abdulkader watched television, drank alcohol and smoked cannabis. At about 10.30pm, Mr Szirt joined the group. He did not drink alcohol and did not use cannabis. At about midnight, as Mr Szirt was about to leave the premises for the purpose of replenishing the alcohol supply, a confrontation occurred between him and the applicant. This apparently occurred because the applicant perceived some form of insult or “disrespect” on the part of Mr Szirt. The applicant took Mr Szirt by the throat, lifted him from the ground, and began to choke him. He told Mr Szirt never to “disrespect” the applicant in his house again. Mr Szirt apologised, left the house and returned with more alcohol.

8. At some later point (between 1.30am and 2.30am) the applicant again assaulted Mr Szirt by punching him in the head while the group was sitting around the kitchen table. The applicant and Mr Abdulkader removed Mr Szirt’s credit card from his wallet and forced him to disclose his personal identification number. This constituted the offence of robbery in company. Mr Abdulkader drove Mr Szirt to the automatic teller machine, where he withdrew what money was in the account. Mr Abdulkader then drove to another address, before returning to Lucerne Street. By this time, Mr Szirt was showing signs of injury.

9. At 3.15am the applicant and Mr Szirt were walking in Lucerne Street. The applicant was intoxicated to the point that he had difficulty standing up. He was pushing Mr Szirt. It appears that they returned to the house at Lucerne Street where another confrontation took place. It was during this confrontation that Mr Szirt suffered serious injuries that proved fatal. His body was later found in a car in Wiley Park. The precise cause of death was not stated in the Remarks on Sentence, although there is some suggestion that he was alive when placed in the car, and that the awkward positioning of his body contributed to his death by causing a blocking of the airway.

10. The assault offence to which the applicant pleaded guilty was committed less than 3 months earlier, also in Lucerne Street, Belmore. This was the subject of an agreed statement of facts. The applicant was visiting a friend, when a violent confrontation occurred between two other people. The applicant had nothing to do with the subject of the confrontation, but nevertheless joined in. He pulled the victim’s shirt over his head, and pushed and pulled him, and placed his foot against the victim’s head, pressing it up against a sofa. He continued to assist another man while the victim was punched 15 to 20 times in his face.

The applicant’s personal circumstances

11. The applicant was born in New Zealand, of Maori extraction, in July 1985. He was 18 years and 5 months of age at the time of the murder. There was some violence in the family, and the applicant began using cannabis at an early age, and mixed with a “youth gang”. His parents separated when he was 9 years of age, and his mother moved to Australia. The applicant spent time in Australia with his mother; at other times he lived with his father in New Zealand. His education was accordingly disrupted. He continued to use cannabis, and took amphetamines. He drank alcohol to excess.

12. The applicant has had some employment, but has largely supported himself by dealing in drugs (mostly cannabis). He has some criminal convictions, although they are principally for driving offences, including three of driving whilst his licence was suspended. There is no prior offence of violence on his record.

13. A psychological report found that the applicant was of limited intellectual ability, and suffered from some personality disorders. There was a degree of paranoia which caused the applicant to be both suspicious and defensive, and caused feelings of superiority.

The findings of Kirby J

14. Kirby J found that the applicant was the principal aggressor in the attack on Mr Szirt. He found that both offenders were affected by alcohol and cannabis. He was unable to find, to the requisite criminal standard, that either intended to kill Mr Szirt, and found, instead, that both intended to cause grievous bodily harm. He found that Mr Szirt’s loss of consciousness was “the result of a sustained and brutal attack”, which included multiple blows to the head. He found that the applicant was the “principal aggressor”, and that Mr Abdulkader, although he participated, “played a much lesser role than [the applicant] in the brutality”.

15. He had regard to a letter of regret written by the applicant for sentencing purposes. He described it as “obviously self-serving”, but nevertheless accepted that the applicant regretted his actions and their consequences.

16. On the basis of all of the evidence, Kirby J found, in respect of the applicant, that the murder fell within the mid-range of objective seriousness. He found that Mr Abdulkader played a lesser role in the attack on Mr Szirt, and was correspondingly less culpable. He therefore found that Mr Abdulkader’s case was below the mid-range of objective seriousness. Kirby J made these findings for the purposes of Pt 4 Div 1A of the Sentencing Procedure Act. He rejected a submission that he ought to find special circumstances within the meaning of s 44(2) of the Sentencing Procedure Act, such as to reduce the proportions there specified between the head sentence and the non-parole period. He did this because he held that, given the length of the sentence that must be imposed, the applicant would have ample to have the benefit of supervision whilst on parole.

17. His Honour referred to s 54A(2) (part of Pt 4 Div 1A) of the Sentencing Procedure Act which provides:

“For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.”

18. At the time Kirby J sentenced the applicant, s 54B of the Sentencing Procedure Act relevantly provided as follows:

“(1)  This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division.

(2)  When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

(3)  The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A.

(4)  The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.

(5)  …”

19. It was on the basis of the orthodox interpretation of Pt 4 Div 1A that applied at that time that Kirby J sentenced the applicant as he did: see R v Way [2004] NSWCCA 131; 60 NSWLR 168.

20. In 2011, the High Court of Australia declared that interpretation to have been wrong and held that Way was wrongly decided: Muldrock v The Queen [2011] HCA 39; 244 CLR 120. It is for that reason that the Crown has conceded that the approach taken by Kirby J can now be seen to have been erroneous.

21. In sentencing the applicant, Kirby J did not impose the standard non-parole period. He gave the applicant’s youth as his reason for departure (imposing a non-parole period less than the standard non-parole period by 2 years). Nevertheless, it is clear that he gave the prescribed standard non-parole period significant weight - greater weight than is permissible following the decision in Muldrock.

22. I am satisfied that the Crown’s concession is properly made, and that the sentencing procedure was affected by error in the manner pleaded. It follows that the sentence imposed in respect of the conviction for murder must be set aside and the applicant re-sentenced on that count. It is only the sentence for murder that can be the subject of the ground of appeal as it is framed. That is because no standard non-parole period applies to the other offences.

Evidence on appeal

23. The applicant has been in custody since 4 December 2003, subject to sentence since 5 September 2006. For the purposes of the appeal, the evidence concerning his circumstances was updated. He himself filed an affidavit with respect to re-sentencing. He acknowledged that, when initially sentenced, and in custody at the Goulburn Correctional Centre, he had a number of prison misconduct charges, and was moved to the Security Threat Group - Intervention Program in February 2009. He described this as:

“a mentally exhausting challenge to alter positively my thought processes and ways of interacting with people.”

He said that it took some time to address and modify his “habitually defective characteristics” but believed that he had made significant progress. The evidence shows that the applicant’s progress towards rehabilitation has not been entirely smooth. Between 2004 and 2006 a number of disciplinary offences are recorded, although these appear to have been relatively minor. He has undertaken some courses while in custody, including anger management courses. Nevertheless, there was an incident in February 2013, which showed that he still had some way to go in this respect.

24. The applicant gave his account of the incident in an affidavit. He said that he had been waiting to make a telephone call concerning his mother, who he understood was to be released from gaol. He was locked in his cell before the call could be made and, despite having been told that he could make the call, he was not permitted to do so. He had an altercation with one of the officers, and used abusive language.

25. In the same context, he gave an account of a later incident, when he was attacked by another inmate, but resisted the temptation to use any more force than was necessary to restrain the attacker, and complied with all directions of the staff. He cited this as an example of his progress.

26. He has been seeing a psychiatrist while in custody, and has been prescribed some medications. There is a suggestion that he might suffer from bipolar disorder.

27. He has completed an Open Training and Education Network programme through TAFE over a 2 year period. He has been accepted into a Bachelor of Occupational Health and Safety course to be completed by Distance Education through the CQ University.

28. Ms Robilliard (the psychologist who assessed the applicant for sentencing purposes in 2006) provided an updated report. The applicant has suffered from depression, and mood swings. He has been prescribed anti-depressants and mood stabilisers. The applicant recounted an incident when a fellow inmate committed suicide, which brought flashbacks of the murder of Mr Szirt back to him.

29. He has converted to Islam while in gaol.

30. Ms Robilliard contrasted the presentation of the applicant when she saw him in 2005 and 2006 with his presentation when she interviewed in January 2014. She said:

“29  In summary, Mr Hohaia’s presentation and participation during our latest meeting was in contrast to my meetings with him in 2005 and 2006. He was a young, antisocial, violent offender and his personality profile at the time described deeply entrenched personality pathology consistent with his offences. At our recent meeting his manner and presentation was calm and he showed signs of mature thinking and prosocial attitudes and values as was also demonstrated on the personality profile he produced on retesting with the same instrument used in 2006. In his own estimation, Mr Hohaia said he had benefited greatly from the intensive treatment he received over the 5 years he was in the STG [Security Threat Group - Intervention Program] unit at Lithgow Correctional Centre. He had access to education and took opportunities available to him. He is now in a position to pursue tertiary studies at TAFE and University level. He had sessions with psychology and counselling staff and reported finding that introspection and engagement in a supported environment was beneficial to his rehabilitation. He also believes his choice to follow Islam has helped to reshape prosocial thinking and consequently, more controlled behaviour. His Convictions Sentences and Appeals history indicates that he has not been charged with drug related matters since 2005 or physical violence (assaults) since 2008. His Intimidation charges were not able to be discussed.”

31. Ms Robilliard reported that the applicant had been in “a committed relationship” for 5 years (as at January 2014). No further details of this were provided.

32. An affidavit was filed on behalf of the Crown, giving some (limited) detail of the applicant’s response to, and behaviour in custody. It is consistent with what has been said above.

Submissions on behalf of the applicant

33. On behalf of the applicant it was submitted that his culpability ought to be assessed in the light of:

• his biological immaturity at the time of the offence;

• his restricted and disadvantaged life experience;

• his limited intellectual ability; and

• his personality disorders.

34. It was again submitted that the Court ought to find special circumstances for the purpose of s 44(2) of the Sentencing Procedure Act, and therefore reduce the proportion of the non-parole period to the head sentence.

35. On behalf of the applicant, considerable weight was placed upon his youth at the time of the offence. Reliance was placed on the decision of Hodgson JA in this Court in BP v R [2010] NSWCCA 159; 201 A Crim R 379. Emphasis was also placed on his educational attainments, and his progress towards rehabilitation.

The Crown’s submissions

36. The Crown’s position was essentially twofold, as follows:

1. no lesser sentence for the murder offence is warranted: see Criminal Appeal Act, s 6(3);

2. in re-sentencing, this Court ought to impose some accumulation of the sentence for the unrelated assault offence.

It is to be noted that, if both submissions were accepted and acted upon, the overall sentence imposed on the applicant would be lengthier than the original. There is no Crown appeal, and no notice has been given to the applicant that he is or might be at risk of re-sentencing in a manner less favourable to him than he was originally sentenced: see Parker v Director of Public Prosecutions (1992) 28 NSWLR 282.

37. The Crown directed extensive submissions to the proposition made on behalf of the applicant that his youth is a matter of significance. It also urged that the Court ought to take a guarded approach to the question of the applicant’s rehabilitation.

Re-sentence

38. In accordance with the dictates of the High Court in Muldrock, it is appropriate to take the standard non-parole period into account as a “legislative guidepost”. However, it is to be seen in the light of other relevant sentencing considerations, one of which, importantly, is the youth of the applicant at the time of the offending. The objective gravity of the offence is one countervailing consideration. Weight must also be given to the applicant’s disadvantaged childhood and background, and his efforts (patchy as they may have been) towards rehabilitation.

39. In all of the circumstances I have come to the view that an appropriate sentence for the murder count is imprisonment for 24 years commencing on 4 December 2003, with a non-parole period of 18 years, to expire on 3 December 2021. That is the same as the sentence imposed by Kirby J, but has been arrived at in the exercise of an independent discretion.

40. I would not interfere with either of the other sentences. They are not the subject of the only ground of appeal. Nor do I find special circumstances such as to warrant any variation in the statutory proportion between the non-parole period and the head sentence.

41. The orders I propose are:

1. The time within which to file an application for leave to appeal extended to 28 June 2013;

2. Leave to appeal granted;

3. Appeal allowed, sentence imposed in respect of the charge of murder set aside;

4. Applicant sentenced to imprisonment for 24 years commencing on 4 December 2003 and expiring on 3 December 2027, with a non-parole period of 18 years, expiring on 3 December 2021, with a balance of term of 6 years.

42. HARRISON J: I agree with Simpson J.

43. ADAMSON J: I have had the benefit of reading the reasons of Simpson J in draft. I agree with her Honour’s reasons and with the orders her Honour proposes. I, too, consider, in the independent exercise of my discretion, that a sentence of 24 years commencing on 4 December 2003 with a non-parole period of 18 years, to expire on 3 December 2021 is an appropriate sentence. I am not of opinion that any lesser sentence is warranted in law within the meaning of s 6(3) of the Criminal Appeal Act 1912 (NSW).

**********

Decision last updated: 11 May 2015