R v Heblos

[2000] VSC 173

SUPREME COURT OF VICTORIA          

CRIMINAL DIVISION

No.1491 of 1999

THE QUEEN

v

MAHAMAD HEBLOS

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JUDGE:	Hampel J
WHERE HELD:	Melbourne
DATE OF SENTENCE:	13 April 2000
CASE MAY BE CITED AS:	R v Mahamad Heblos
MEDIUM NEUTRAL CITATION:	[2000] VSC 173

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CRIMINAL LAW – Sentence – Murder – Effect of plea of guilty to manslaughter at trial – Admissions - Issue of intent at trial – Convicted of murder – Assault in course of robbery – Youth – Absence of prior convictions – 15 years’ imprisonment with minimum non parole period of 10 years’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Read	Office of Public Prosecutions
For the Accused	Mr J. Smallwood Q.C.	Victoria Legal Aid

HIS HONOUR:

1. Mohamad Heblos, you were found guilty by the jury of the murder of your former employer, Mr Samuel Borenstein, on 23 February of last year.  Mr Borenstein was the owner of Sam's Tyres, a tyre retail outlet at Brunswick.  You started working there as a tyre fitter in about February of 1997.  Initially your work performance was good, but later it deteriorated when you started smoking marijuana and became slack and disinterested in your work.  In mid 1998 you stole about $3,500 from Mr Borenstein's briefcase while washing his car.  You were caught out and returned the money.  Despite this, you were allowed to keep your job.  However, in August that year, you were sacked because you had cut some tyres.  Your subsequent attempt to your job back with Mr Borenstein was unsuccessful.

1. By January of 1999 you accumulated a number of debts and you were concerned about that.  You told one of your friends that you were going to go to Sam's Tyres to take money from Mr Borenstein when he closed up, and that is precisely what you did.  On the evening of 23 February you went to Sam's Tyres, you watched from a bus shelter across the road, and then you entered the premises between about 7 and 8 p.m.  You hid in a storeroom.  When you heard the roller door closing, you confronted Mr Borenstein, after arming yourself with a jack handle.  With that, you struck him about the head and threw a car battery at him.  You later said to the police that you went "psycho and schitz", and said that you wanted to make him unconscious.  The evidence was that Mr Borenstein received eight separate blows in this brutal attack to the head, which caused fractures of his skull and resulted in his death.

1. Before leaving you took his briefcase.  You then changed your clothes and drove to various locations in Sydenham, where you buried just over $9,000 in cash and other items from the briefcase.  You also burnt the briefcase and your clothing.

1. The next day you telephoned Mr Borenstein's son and feigned ignorance and sympathy.  On 27 February you gave the police a false alibi as to your movements on the night Mr Borenstein was killed.  Later, during a long recorded interview, you admitted that you went to Sam's Tyres and were responsible for Mr Borenstein's death.  You said that you went there to rob him and because you were angry at the way he had treated you.  This, I think, was a reference to the evidence that you were singled out by Mr Borenstein for more rebuke than other employees while you worked there.

1. At the trial you pleaded guilty to manslaughter.  The trial was conducted responsibly by Mr Smallwood QC on your behalf and was directed to the one issue only, that is, your intent at the time when you inflicted the injuries on Mr Borenstein.  Mr Read, for the Crown, put the case on the basis that your intention was to kill or at least to inflict really serious injury.  Mr Smallwood argued at the trial that although you intended to inflict injury, it was because you were trapped in the course of committing the robbery and panicked.

1. In light of the number and nature of the blows inflicted which caused death, and your admissions to the police, it is, I think, not surprising that you were convicted of murder, at least on the basis of the intention to inflict really serious injury.  For the purpose of sentencing you, I am not sufficiently persuaded that you intended to kill.  I agree with Mr Smallwood's submission on the plea that your primary intention was robbery, although you obviously also held a grudge against Mr Borenstein.

1. I have read the victim impact statements made by the deceased's wife and other members of the family.  They emphasise the tragedy, the grief and the sorrow which your crime has caused.

1. You were 18 years of age at the time, and you are only 19 now.  You are one of seven children of a migrant Lebanese family, and you have been in Australia since you were two years of age.  Your IQ is at the lower end of the scale.  You had learning difficulties and discipline problems at school.  You failed Year 10, and then held a number of jobs, the last of which was at Sam's Tyres.  You were described as having low self-esteem and your work at Sam's Tyres was beneficial to you.  Unfortunately, you started using drugs, your work slackened and you acted dishonestly towards Mr Borenstein.  Also, unfortunately, you did not take the opportunity he gave you after you stole his money, and it is perfectly understandable that you were sacked after stabbing the tyres.

1. Now in prison, you receive anti-depressive medication and you have attempted to improve yourself.  You have completed an information technology course and a drug and anger management course.  You have been receiving counselling and you have enrolled for a TAFE course in general education for next year.

1. Despite your behaviour after killing Mr Borenstein, I think that your admissions in the record of interview overall show that you intended to co-operate with the police.  Although you are not entitled to a discount for a plea of guilty, I take into account to some extent the fact that the trial was conducted on the limited mental state issue with the least possible trauma to witnesses.  Your behaviour and efforts in custody now over a year also help me to conclude that, at your age and with your supportive family, you have reasonable prospects of rehabilitation.  You have no previous convictions and I take into account, as I am obliged to do, your youth at the time of this crime and now at the time of sentence.  In the case of a youthful offender, the community's interests in having appropriate punishment imposed for such a serious crime must to some extent be offset by the community's further interest in rehabilitation.

1. After balancing these various sentencing considerations to which I have referred, I sentence you to be imprisoned for a period of 15 years.  I fix a period of 10 years before which you will not be eligible for parole.  I declare that 412 days have been served pursuant to this sentence and order that this declaration be entered into the records of the court.

1. I make the orders sought by the Crown for forfeiture and the taking of an intimate blood sample.  I should tell you that should you refuse to give such a sample, the police may use reasonable force to obtain it.

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