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

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.
On 5 September 2006 Kirby J sentenced both offenders. He sentenced the applicant, on the murder count,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWCCA 91
Decision Date: 11 May 2015

CaseChat Overview and Summary

In the case of Hohaia v The Queen, the appellant appealed against his sentence for murder and robbery in company, committed with two others. The Court of Appeal, consisting of Beech-Jones, The Honourable Chief Justice of the Northern Territory and the Honourable Justices of Appeal White and Thomas, heard the matter. The appellant argued that the trial judge had failed to properly consider his personal circumstances and his potential for rehabilitation, and had instead erred in his approach to sentencing by focusing solely on the gravity of the offence.

The legal issues before the court were whether the trial judge had erred in his approach to sentencing by not adequately considering the appellant's personal circumstances and potential for rehabilitation, and whether the sentence imposed was manifestly excessive. The court considered whether the trial judge had correctly applied the principles of sentencing in murder cases, and whether the sentence imposed was appropriate in the circumstances. The court also considered whether the trial judge had made a “Muldrock error” in his sentencing approach, by focusing solely on the gravity of the offence and not adequately considering the appellant's personal circumstances and potential for rehabilitation.

The court found that the trial judge had erred in his approach to sentencing by not adequately considering the appellant's personal circumstances and potential for rehabilitation. The court held that the trial judge had placed too much emphasis on the gravity of the offence and had not given sufficient weight to the appellant's personal circumstances and potential for rehabilitation. The court found that the trial judge had made a “Muldrock error” in his sentencing approach, and that the sentence imposed was manifestly excessive. The court allowed the appeal, quashed the sentence imposed by the trial judge, and re-sentenced the appellant to a term of imprisonment with a non-parole period of twenty-two years.

Orders