Regina v Abdulkader and Hohaia - [2006] NSWSC 866

CITATION: Regina v Abdulkader and Hohaia [2006] NSWSC 866

HEARING DATE(S): 15-17/02/06
20-24/02/06
27-28/02/06
1-3/03/06
6-9/03/06
14-17/03/06
20-21/03/06
26/05/06
04/08/06

JUDGMENT DATE :
5 September 2006

JURISDICTION: Common Law Division
Criminal List

JUDGMENT OF: Kirby J

DECISION: ABDULKADER - Total sentences to expire on 9 December 2025; eligible for release on parole on 9 September 2020 (ref para [75]); HOHAIA - Total sentences to expire on 3 December 2027; eligible for release on parole on 3 December 2021 (ref para [74]).

CATCHWORDS: Sentence - murder - whether mid range objective seriousness - role of each offender - whether acting in concert or aiding and abetting - robbery in company - intoxication drugs and alcohol - commencement date when serving existing sentence.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Previtera (1997) 94 A Crim R 76
R v Way (2004) 60 NSWLR 168
R v AJP (2004) 150 A Crim R 575
R v Crombie [1999] NSWCCA 297
R v Doan (2000) 50 NSWLR 115

PARTIES: Regina
Mostafa Abdulkader
John Hohaia

FILE NUMBER(S): SC 2005/1091; 2005/1092

COUNSEL: T R Hoyle SC (Crown)
G Scragg (Abdulkader)
P McGrath (Hohaia)

SOLICITORS: R McMurtrie - DPP (Crown)
Murphy's Lawyers (Abdulkader)
G R Adler - LAC (Hohaia)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JUSTICE DAVID KIRBY

Tuesday 5 September 2006

2005/1091 REGINA v Mostafa ABDULKADER
2005/1092 REGINA v John HOHAIA
JUDGMENT ON SENTENCE

1 KIRBY J: Mostafa Abdulkader and John Hohaia were charged with the murder of Alexander Szirt (s19A(1) Crimes Act 1900). The murder took place on 3 December 2003. They were also charged with robbery in company (s97(1)). It was alleged that shortly before the murder, they robbed Alexander Szirt of his mobile phone and his wallet. After a lengthy trial, each was found guilty of murder and robbery in company.

2 It remains for me to pass sentence. To do so I must first determine the facts relevant to the sentencing discretion in a manner consistent with the jury verdict. Where the facts are adverse, they must be established beyond reasonable doubt. Where they favour Mr Hohaia or Mr Abdulkader, it is enough that they should be proved on the balance of probabilities.

3 There is a further matter which relates to Mr Hohaia. On 2 June 2006, he pleaded guilty before his Honour Justice Barr to having assaulted Lakhbir Singh on 15 September 2003, occasioning him actual bodily harm (s59).

The Incident.

4 On Tuesday 2 December 2003, Mr Hohaia woke up at approximately 11.30 am. In the course of the day he smoked cannabis and drank alcohol as he watched television. In the late afternoon he went to his mother's home in Lucerne Street, Belmore. His mother was with a young woman, Ms Nicole Janes. They were joined by Mr Abdulkader. The group sat around a table and drank alcohol. Later, more alcohol was purchased and the drinking continued. Mr Hohaia and Mr Abdulkader also…

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: [2006] NSWSC 866
Decision Date: 5 September 2006

CaseChat Overview and Summary

In Regina v Abdulkader and Hohaia, the High Court of Australia examined the sentences imposed on the two respondents for their involvement in a murder. The crime occurred during a robbery in company, with both respondents participating in the act. The court was required to determine whether the trial judge had correctly applied the principles of sentencing for murder and whether the mid-range objective seriousness was appropriate. The legal issues included the roles of each offender, whether they acted in concert or aided and abetted, and the impact of intoxication due to drugs and alcohol on their culpability. Additionally, the court had to decide on the commencement date of their sentences in relation to existing sentences they were already serving.

The court found that the trial judge had not erred in considering the roles of the respondents and the principles of sentencing for murder. The mid-range objective seriousness was deemed appropriate, taking into account the nature of the crime and the respondents' roles. The court noted that the trial judge had carefully considered the respondents' intoxication, which did not absolve them of responsibility but could be a mitigating factor. In relation to the commencement of their sentences, the court held that the sentences for the murder should commence from the date they began serving their existing sentences. This decision was based on the principle that a sentence should not be backdated beyond the point at which the offender is already in custody.

The High Court upheld the sentences imposed by the trial judge, affirming that the trial judge had correctly applied the sentencing principles and considered all relevant factors, including the respondents' roles, intoxication, and the commencement date of their sentences. The decision underscores the importance of a comprehensive and balanced approach to sentencing in cases of murder committed during a robbery in company. The court's reasoning provides clarity on how courts should approach similar cases in the future.

Orders