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 smoked cannabis using a bong.

5 At about 10.30 pm contact was made by telephone with Alexander Szirt. He was with his parents at the Hurlstone Park RSL. He had been participating in a trivia night. He was sober. He left the RSL and drove to Lucerne Street, Belmore. He joined the others at the kitchen table. Unlike the others, however, he neither drank alcohol nor smoked cannabis.

6 At about midnight, Alexander Szirt got up from the table. His intention was to drive to the local hotel to purchase more alcohol on behalf of the group. As he was leaving, Mr Hohaia addressed certain remarks to him. Mr Szirt responded by gesturing with two fingers towards Mr Hohaia. Mr Hohaia immediately got up from the table. He took Mr Szirt by the throat and lifted him from the ground. He began to choke him. As he did so he said: "Never disrespect me in my house again". Mr Szirt apologised. He then left the house. He later returned with more alcohol.

7 There are difficulties in determining what happened thereafter. Two witnesses called by the Crown were at the house that evening. Both were affected by alcohol. Caution must be exercised before accepting their evidence. One, George Choueiri, tailored his evidence to assist each accused. His testimony was completely unreliable. However, he made a statement to the police soon after the incident, which is capable of providing insight.

8 The broad picture is clear. At 1.35 am Alexander Szirt was telephoned by his father. His father enquired whether he was alright. He said that he was, although he sounded nervous. He also said that he would be home soon. Shortly after 5.00 am, a person living adjacent to Wiley Park heard what he thought was a light truck. He went to his bedroom window. He saw a red car in which Mr Szirt's body was later found. Alexander Szirt was repeatedly and savagely assaulted some time after 1.35 am and before 5.00 am. I infer that, by 5.00 am, he was certainly unconscious and may even have been dead. If he was not dead, he died within a short time.

9 What exactly happened between 1.35 am and 5.00 am is less certain. A number of things, however, are clear. At some point, and I infer before 2.24 am, Alexander Szirt was assaulted. The assault was perpetrated by Mr Hohaia. He repeatedly punched him to the head whilst they were seated at the kitchen table inside the house. Mr Abdulkader was present and ready to give assistance, if required. On balance, I accept that Mr Abdulkader did not strike Alexander Szirt at this point.

10 However, Mr Hohaia and Mr Abdulkader removed the wallet of Alexander Szirt from his pocket. This was one aspect of the robbery charge. They obtained access to his Bankcard. They forced him to reveal his PIN number. He was taken to his car which was parked in Lucerne Street. Mr Abdulkader drove with Alexander Szirt to an ATM machine in Haldon Street, Lakemba. The sum of $190, almost the entire credit balance, was withdrawn. The bank records record that the transaction was at 2.24 am. This was not an aspect of the robbery charge. Mr Abdulkader then drove to his flat at Quigg Street, Lakemba. He spoke to his girlfriend, Ms Vanita Ram. I accept Ms Ram's evidence. She was a most impressive witness. She saw a person seated beside Mr Abdulkader, sitting low in the seat. He was a young man. She did not recognise him. I infer that it was Alexander Szirt. I also infer that he was sitting low in the seat because he had already been beaten by Mr Hohaia. Mr Abdulkader drove back to the house at Lucerne Street with Mr Szirt.

11 At some point thereafter Mr Abdulkader left the house again. He drove Mr Szirt's car. He then returned to his own flat. He picked up Ms Ram and two other young women who were staying at the flat. They drove to the zigzag carpark at Rockdale. He was gone about an hour. He dropped the women at the flat and then returned to Lucerne Street.

12 At 3.15 am Ms Barbara Kitsios came home from work. She intended to visit her boyfriend in Lucerne Street. She saw Mr Hohaia, whom she knew. He was walking along Lucerne Street towards her. He was accompanied by another man and was angry. He spoke in a high pitched voice. Indeed, he was yelling at the other man. Ms Kitsios described the other man. It was clear from her description that it was the victim, Alexander Szirt. She saw Mr Hohaia push Alexander Szirt as they walked along the footpath. Ms Kitsios could see that Mr Hohaia was drunk. When she spoke to him, his speech was slurred. He was having difficulty standing up. At one stage he supported himself by holding onto the letterbox. Mr Szirt passed in front of Ms Kitsios. He smiled at her. She did not think that he was injured. That assessment was made at night with the aid of limited light. It is likely that Mr Szirt had already sustained injuries to his mouth, although he was plainly able to walk. Ms Kitsios did not see Mostafa Abdulkader, whom she knew. I infer that he was, at this point, at the zigzag carpark.

13 Some time after 3.30 am, Mr Abdulkader returned to Lucerne Street. He rejoined Mr Hohaia. I infer that Mr Hohaia held Mr Szirt at his mercy. Ms Kitsios said that she lay awake for some time after she went to bed. She thought it was about half an hour, but I infer that it may have been longer. She heard noise from the street. There was a lot of yelling. She discerned more than one voice. It sounded like a fight. The noise lasted about five minutes.

14 The police came to the premises the next day and made an inspection. They found blood, which was consistent with that of the deceased, on the pathway and in the forecourt of the home in Lucerne Street. The blood was still present even though it had been raining heavily. I infer that the deceased was again beaten outside the house.

15 Who was responsible for the sustained assault upon the deceased outside the house? I have no doubt that Mr Hohaia was the principal aggressor. He had attempted to choke the deceased inside the house at about midnight. He had later punched him repeatedly whilst they sat at the kitchen table. He had pushed him as they walked along Lucerne Street towards Ms Kitsios at about 3.30 am. When his hands were examined by the police the next day, there were a number of small cuts on each hand. They were photographed, and became an exhibit at the trial. A scientific examination of his clothing revealed the presence of blood which was consistent with that of the deceased. Indeed, there was an extensive patch of blood in the crutch area of the black trousers that Mr Hohaia had been wearing. There was also blood on his underpants, singlet and shirt. There can be no doubt that he was primarily responsible for the battering sustained by the deceased that morning.

16 What, then, was the role of Mr Abdulkader? The jury was asked to consider a number of alternatives. Did he act in concert with Mr Hohaia, playing a lesser role, but also striking the deceased? Or was he present, and simply aiding and encouraging Mr Hohaia? Counsel for Mr Abdulkader urged the latter, that is that he was aiding and abetting the murder, and therefore less morally culpable that Mr Hohaia. Counsel submitted that I could not be satisfied beyond reasonable doubt that Mr Abdulkader had struck the deceased.

17 Ms Nicole Janes gave evidence that she witnessed the attack on Alexander Szirt outside the house. She said that both men punched and kicked Alexander Szirt as he lay on the ground. The medical evidence did not suggest significant injuries to the body, as opposed to the head, although there was the imprint of a shoe on the deceased's chest. Ms Janes was, as I have said, a witness who's evidence must be approached with some caution. She had consumed a significant amount of alcohol that evening. She was plainly traumatised by what she saw. She was also, in respect of some issues, manifestly unreliable. Was she, however, reliable in her identification of those involved in the assault outside the house? Ms Janes made a statement to the police late on the day of the murder. Her statement was not tendered in evidence. However, she was cross examined upon aspects of that statement. I infer that her account to the police concerning what happened outside the house was broadly consistent with the account she gave during the trial, including her account concerning involvement of Mr Abdulkader.

18 There was other evidence which suggested Mr Abdulkader's physical involvement in the bashing of Alexander Szirt, although there was uncertainty as to the location of the bashing. Mr Abdulkader's former girlfriend, Ms Vinita Ram, recounted a conversation at the flat. It took place at sunrise on the morning of 3 December 2003. The conversation therefore occurred shortly after the car with Alexander Szirt's body had been left at Wiley Park. She described Mr Abdulkader as "freaking out". He said that "they", meaning he and Mr Hohaia, had bashed Alexander Szirt at the park. Mr Abdulkader said he was unsure whether he was dead or alive. The police later found blood spatter on the side of Mr Szirt's vehicle. There was other evidence which suggested that at some point Mr Szirt had been on the ground.

19 Ms Ram agreed in the course of cross examination that she hated Mr Abdulkader. She was, nonetheless, a most impressive witness, as I have said. I have no doubt that she was telling the truth. I accept that Mr Abdulkader told her that he, personally, had been involved in the bashing.

20 The Crown also relied upon a circumstantial case to implicate Mr Abdulkader in the murder. That case tended to confirm his physical involvement in the bashing. Blood was found in a small crack on the face of his watch. Its presence was revealed by a presumptive test. Such a test has its limitations. There was not enough blood to enable a DNA test to be undertaken. Evidence was also given, which I accept, that having come back to the flat at about sunrise, Mr Abdulkader changed his clothing. More than that, he placed that clothing, including his boots, in the washing machine. Mr Abdulkader denied that evidence. I, nonetheless, accept its accuracy.

21 At the time of the autopsy, clippings were taken from the fingernails of Alexander Szirt. The DNA of Mr Abdulkader was found upon the left fingernail of the deceased. The Crown placed some emphasis upon the fact that it was the left hand and not the right. One does not shake hands with the left hand. I accept that there was no reasonable possibility that the DNA upon the deceased's fingernail was the consequence of casual social contact, rather than physical engagement.

22 I accept therefore, beyond reasonable doubt, that Mr Abdulkader physically struck Alexander Szirt. However, I also accept that he played a much lesser role than Mr Hohaia in the brutality. Nonetheless, he was present and offering encouragement at various stages, including at the end.

23 Both Mr Hohaia and Mr Abdulkader were affected by alcohol and cannabis. That is not an excuse, but part of the explanation for their behaviour. It cannot be said beyond reasonable doubt that either intended to kill Alexander Szirt. Both intended to cause him grievous bodily harm. It is likely that, when Mr Szirt's body was placed in the car, he was unconscious, but not dead. His loss of consciousness was, I believe, the result of a sustained and brutal attack. There were multiple blows to his head. It is possible that the awkward position of his body when dumped in the rear of the vehicle, contributed to the blocking of his airway and that, in turn, contributed to his death.

24 The deceased, Alexander Szirt, was entirely blameless. What possible motive could Mr Hohaia and Mr Abdulkader have had for such a cowardly and sustained attack upon a defenceless young man? No satisfactory answer emerged from the evidence. Mr Hohaia claimed that he did not remember anything after the attack inside the house. Mr Abdulkader simply denied any involvement. Ms Nicole Janes gave evidence of a comment made by Mr Hohaia in the course of the evening. He said that Mr Szirt was not "like them". He was right. Mr Szirt was not like them. He had a job. He had prospects. He was paying off his car. He came from a loving family. It appears, at least on the part of Mr Hohaia, that there was envy in respect of the advantages Alexander Szirt enjoyed.

25 Turning to the offence of robbery in company, Mr Hohaia and Mr Abdulkaer obviously acted in concert. They took, for their own purposes, the wallet and the mobile phone of Alexander Szirt. The mobile phone was sold within a short time. How they divided the proceeds of the robbery is uncertain. The crime was opportunistic, committed whilst Mr Szirt was at their mercy. The maximum penalty in respect of robbery in company in 20 years imprisonment.

The further charge against Mr Hohaia.

26 Mr Hohaia is to be sentenced for a third matter. It is unrelated to the events of 3 December 2003, although it involved behaviour which is frighteningly similar. It concerns an incident three months earlier on 15 September 2003. Mr Hohaia is charged with the assault of Lakhbir Singh, causing him actual bodily harm. He has pleaded guilty. The maximum penalty in respect of that crime is five years imprisonment.

27 The Crown tendered an Agreed Statement of Facts which Mr Hohaia signed. The assault on Lakhbir Singh took place in the unit of Mr Hohaia's friend, Mr Don Singh. Mr Don Singh had a sister Roslyn Singh. Roslyn had a relationship with a person, Sarabjit Singh, who had the same surname but was no relation. The victim arrived at the flat and sat on a sofa with Roslyn Singh. Sarabjit Singh came home and clearly resented Lakhbir sitting on the sofa. Sarabjit Singh then assaulted the victim. Mr Hohaia joined in, also assaulting him. Mr Hohaia acknowledged punching Lakhbir Singh to the head and face at least 15 to 20 times whilst Sarabjit Singh was kicking him. Roslyn began to scream and ultimately they stopped. What happened next was described in the Agreed Statement of Facts as follows:

"8. ... Hohaia pulled Lakhbir Singh's shirt over his head and pushed and pulled him moving Lakhbir Singh to another sofa. Hohaia placed his foot against Lakhbir Singh's head pressing it up against this sofa. Lakhbir Singh said, 'let me go, please what did I do?' Hohaia pushed harder against Lakhbir Singh's head with his foot resulting in Lakhbir Singh finding it difficult to breathe and talk. Hohaia removed his foot from Lakhbir Singh's head. Then Sarabjit Singh placed both his hands on Lakhbir Singh's head and forced it down into the sofa."

28 Again Roslyn screamed. Mr Hohaia and Sarabjit Singh then let go of the victim. Eventually the victim fled, jumping over the balcony into the driveway.

29 The matter was reported to the police, who then interviewed Mr Hohaia. He was, at that stage, released without charge. The injuries to Lakhbir Singh, the product of the various assaults, were described in these terms:

"15. Lakhbir Singh's injuries to his head and face were a lump to his left forehead, a bruise under his right eye, a swollen jaw, a lump to the back of his head, a lump to the right side of his head and a blood nose. His other injuries were a cut on his right hand, grazes on his right elbow, a graze on his left elbow, a bruise on his right shoulder, a swollen left shoulder and a number of small cuts to his back."

30 Let me then turn to the subjective case in respect of each offender, beginning with Mr Hohaia.

Subjective Case of Mr Hohaia.

31 Mr Hohaia was born in Auckland on 7 July 1985. He is the youngest of three children. His early life was said to have been happy. It was, however, at times chaotic and there was occasional violence. At an early age he was introduced to cannabis and mixed with a youth gang.

32 When Mr Hohaia was quite young his parents separated. His mother moved to Australia. At the age of about 14 years his father sent him to Australia, partly to break the pattern of his drug use and to end his association with youth gangs.

33 However, Mr Hohaia did not remain in Sydney for long. He returned to New Zealand, although he soon after came back to Australia. The movement back and forth obviously disrupted his education. He resumed drug taking, mainly cannabis, although also amphetamines. He drank alcohol to excess. He told the officer from the Probation and Parole Service that his peer group in Australia was heavily involved in alcohol abuse and anti-social behaviour.

34 Having left school, Mr Hohaia worked for a time with a recycling company. It was not long before he was unemployed. According to the evidence he gave at trial, he thereafter supported himself by dealing in drugs, mainly cannabis.

35 Whilst in Australia he accumulated a number of criminal convictions, although mainly for driving offences. He does not have convictions for offences of violence.

36 There is some evidence of contrition, although it is recent. The report of the Probation and Parole Service of 27 April 2006 included these words:

"Mr Hohaia stated that after being remanded in custody for eighteen months he had come to the realisation that he was a 'violent and angry person, always had been, and had hurt a lot of people'. He further indicated that he acknowledged his use of alcohol and cannabis were contributing factors for his behaviour. The offender claimed that he has sought intervention for his drug and alcohol use and anger management whilst in custody, however, due to being internally transferred within the correctional system, is yet to commence this intervention."

37 Mr Hohaia wrote a letter to me, as the sentencing Judge, which included these words:

"I am honestly and truly sorry for what I have done and the pain caused to the victim's family. I know saying sorry is not going to bring back the life of Alex Szirt and I will never forgive myself for what I did. It was never my intention to end the life of Alex Szirt. I was young, dangerous and out of control. Alcohol and drugs are no excuse for the serious crime I have committed. This is why I have to take responsibility for my own actions and I have been attending Drug and Alcohol courses and Anger Management. These courses have given me an alternative way to approach my life and made me more aware of the dangers of my previous life."

38 Such a statement is obviously self-serving. Nonetheless, I accept that Mr Hohaia regrets his actions and their consequences.

39 Mr Hohaia was assessed by Ms Robilliard, a psychologist. She interviewed him on two occasions. A report was prepared, which is an exhibit in these proceedings. The report records the outcome of various tests which Ms Robilliard administered. Mr Hohaia, according to Ms Robilliard, has limited intellectual ability and certain personality disorders. She said that it was a characteristic of his condition that he has little understanding of the behaviour of others and, to some degree, suffers from paranoia. The paranoia causes him at the same time to be both suspicious and defensive, but also to feel superior to the person inducing the feelings of paranoia.

40 All these matters are relevant to the question of Mr Hohaia's prospects of rehabilitation. In this context, the Crown drew attention to Mr Hohaia's custodial history. He has repeatedly offended in the two and a half years that he has been in custody. The offences are conveniently set out in the Probation and Parole report and are as follows:

"Since July 2004, Mr Hohaia has been punished for 9 events of institutional misconduct. These include:

· 3 counts of Disobey Direction, in October 2004, February 2005 and August 2005.

· 2 counts of Drugs in Urine, in September 2004 and February 2005.

· 2 counts of Smoke in Non Smoking Area, in July 2004 and October 2004.

· 1 count of Intimidation in August 2005.

· 1 count of Giving False or Misleading Information, in April 2005."

41 He was, at one time, given the position of "sweeper", which is a position of trust. However the position was withdrawn because of a gaol infraction. The Probation report recorded that, as a consequence of the intimidation charge in August 2005, Mr Hohaia has been monitored in respect of standing over other inmates.

42 However, the position in respect of rehabilitation is not entirely bleak. There have been no further offences since August 2005. A report from the Senior Correctional Education Officer, dated 31 July 2006, records that Mr Hohaia has worked within the Education Unit for a period of six months and was conscientious and cooperative in the performance of his duties. He has also participated in educational and other programmes and is continuing with such programmes.

43 The Crown submitted, nonetheless, that his prospects of rehabilitation were poor. They were poor because of his poly-drug use and propensity for violence. He has limited education and a poor work record before incarceration. In response, counsel for Mr Hohaia, whilst acknowledging his prospects of rehabilitation were "not outstanding" based upon the pre-sentence report, said that Mr Hohaia was still very young. He has already undertaken courses. He will later be eligible for the Violent Offenders' Programme once sentenced.

44 Mr Hohaia is certainly young. There are signs that he has taken some responsibility for his behaviour and has some insight into the need for change. As mentioned, he has not offended within the gaol system since August 2005. I think it unduly pessimistic to say that his prospects of rehabilitation are poor. Nonetheless, one must be guarded concerning his future.

Subjective Case for Mr Abdulkader.

45 Mr Abdulkader was born in Australia on 13 September 1982. He was 21 at the time of these offences. He is now almost 24 years. He was adopted at birth by a Lebanese mother and father.

46 Mr Abdulkader told Dr Allnutt, a psychiatrist whom he saw for the purposes of these proceedings, that he found school difficult. He was Lebanese and bullied. Scholastically he did not perform well. At the age of nine or thereabouts, he began using drugs. By the time of his arrest he was using a significant quantity of cannabis each day. When he had funds, he also used amphetamines, ice, ecstasy and other drugs.

47 Returning to his early history, at the age of 12 his parents separated. He was then told that he had been adopted. He remained in the care of his mother, but regularly saw his father. His mother, however, was ill. She was suffering from lung cancer. He went with her to Lebanon on a number of occasions so that she could receive treatment. Whilst in Lebanon, and on the morning of his 16th birthday, she died. He felt that his relatives in some way blamed him for her death.

48 Mr Abdulkader left school after completing Year 9. He obtained work in the hospitality industry. He undertook a course in TAFE with a view to becoming a chef.

49 By the time Mr Abdulkader committed these offences, he had accumulated a significant criminal record. He came before the Children's Court on a number of occasions, mainly for driving offences, although in November 2000 he was charged with assault. He was fined a relatively modest sum. There followed a number of convictions for driving whilst under the influence of alcohol or drugs.

50 On 10 May 2002, Mr Abdulkader was dealt with in respect of a charge of using a false instrument with intent. He was placed on a two year bond. He was obliged to accept the supervision of the Probation and Parole Service. The bond was current at the time he committed the offences of murder and robbery. That was a matter of aggravation. He was also sentenced to a period of 12 months home detention in respect of his involvement with a stolen motor vehicle.

51 Mr Abdulkader, prior to 3 December 2003, had experienced psychiatric problems. He went to the Canterbury Hospital Emergency Department on 18 January 2003, reporting that he had taken a significant quantity of drugs. He said that he had an argument with his girlfriend. He was later interviewed by the mental health team and was allowed to leave the hospital.

52 He presented again at the same hospital on 11 February 2003. He had pain and swelling to his left hand. He told hospital staff that he had injured his hand when he punched a wall.

53 On 13 March 2003, Mr Abdulkader was admitted to the Canterbury Hospital having attempted suicide following a break-up with his girlfriend. He had taken a number of drugs. He said that he wanted to kill himself. He was transferred the following day to the Rozelle Hospital.

54 On 20 May 2003, Mr Abdulkader again presented at the Emergency Department of the Canterbury Hospital. He had superficial cuts to his arms. He had attempted suicide because his girlfriend had said that she was leaving him. Having been interviewed, he was assessed as not being at risk and allowed to leave.

55 On 19 June 2003, Mr Abdulkader was arrested for the supply of methylamphetamines. The charge was still outstanding when he was arrested on 10 December 2003 for the murder of Alexander Szirt. The trial took place in May 2004 in the District Court before a jury. Mr Abdulkader was convicted. He was sentenced to a term of imprisonment of 32 months commencing on 11 May 2004 and ending on 10 January 2007, with a non parole period of 20 months commencing on 11 May 2004 and ending on 10 January 2006.

56 The Probation and Parole report dated 24 April 2006, said this in relation to his way of life before these offences occurred: (p4)

"During recent contact with this Service the offender admitted to being involved in regular drug dealing activities whilst in the community. He admitted to regular drug use and agreed that he associated mainly within the known criminal sub-culture, stating that at that time of his life he 'didn't care if [he] lived or died' and in discussion of the offence, he admitted to being emotionally detached from the feelings of others and their value as another human being. He associated these behaviours with his grief and loss issues related to his reaction to his mother's death."

57 The same report recorded the internal charges preferred against Mr Abdulkader since his incarceration, namely:

7.2.04	Smoke non smoke area	Received warning.
12.2.04	Smoke non smoke area	Received warning.
15.8.04	Fail urine test (oxepam)	42 days of contact visits.
29.4.05	Damage, destroy property	1 day cell $100 compensation.

58 The report also made the following comment which is relevant to Mr Abdulkader's ultimate rehabilitation: (p6)

"Using the LSI-R assessment tool, the offender was assessed as having a medium to high risk of recidivism, scoring within the higher percentile (higher than 76.8 of other offenders) of those having a 57.3 percent chance of re-offending within twelve months of release from custody.
Identified factors of risk included his criminal antecedents, financial concerns, family and relationship issues, lack of pro-social leisure activities, substance abuse, anti-social attitudes, criminal orientation and unresolved emotional issues."

59 A number of medical reports concerning Mr Abdulkader were tendered during the sentencing proceedings. Mr John Taylor, psychologist, carried out a series of tests. He expressed the view that Mr Abdulkader had a borderline personality disorder. He, nonetheless, determined that he had "a moderate likelihood" of re-offending.

60 More recently, Mr Abdulkader saw Dr Allnutt, psychiatrist. Dr Allnutt ultimately expressed the view that Mr Abdulkader was probably suffering from a depressive disorder. He had a history of Polysubstance Dependence Disorder. Dr Allnutt also believed that it would be reasonable to conclude that, at the time of offending, Mr Abdulkader was experiencing delusional beliefs and auditory phenomena, consistent with a drug induced psychosis. That diagnosis was based, in part, upon the history he had received from Mr Abdulkader.

61 I am not persuaded, however, as a probability, by Dr Allnutt's diagnosis. I accept that, periodically following his mother's death, Mr Abdulkader suffered from depression. There are reports of attempts at self harm. On the evening of 3 December 2003, Mr Andulkader was certainly affected by drugs and alcohol, although not to the extent that he suggested in his evidence. I believe it likely that symptoms he reported when admitted to hospital on 10 December 2003, following his arrest, were the consequence of his predicament, and not the culmination of some psychiatric episode which had already begun on or before 3 December.

62 Mr Abdulkader, as mentioned, denied any involvement in the murder or the robbery of Alexander Szirt. As mentioned, his defence at trial was alibi. There was no contrition. There was no acceptance of responsibility.

63 The Crown submitted that the prospects of rehabilitation for Mr Abdulkader were poor. His abuse of drugs and alcohol, his sporadic psychiatric problems, his poor work history, the gaol offences he had committed, gave no reason for optimism, according to the Crown. Counsel for Mr Abdulkader, on the other hand, pointed to his youth, to the opinion of Dr Taylor that he presented only a moderate risk of re-offending and to the fact that his criminal record included one minor assault but otherwise no crimes of violence. He has now undertaken a food and hospitality course in gaol.

64 The key to Mr Abdulkader's recovery, I believe, is abstention from drugs and alcohol. Were he to succeed in that, his prospects of rehabilitation may be reasonable. At this point, having regard to his history, one must be guarded. His offences in gaol were relatively minor and he has not offended for some time. It is encouraging that he has undertaken courses in gaol. He is still young. There is reason for hope.

Appropriate Sentences.

65 Let me turn to the appropriate sentences for each offender. Murder has always been regarded as the most serious criminal offence. Absent extraordinary circumstances, it calls for a substantial sentence, by way of imprisonment, to serve the interests of punishment, including denunciation and general deterrence. During the sentencing proceedings, the Crown tendered Victim Impact Statements from the mother and father of Alexander Szirt. Each statement was read out in court. Each was a poignant account of their love for their gentle son. Each described the endless pain that has followed his brutal and senseless death. Their statements were amongst the most moving that I have heard. The Court extends its sympathy to them and to members of their family. I must, of course, deal with this material in a manner consistent with R v Previtera (1997) 94 A Crim R 76 at 85.

The murder was committed on 3 December 2003. The Crimes (Sentencing Procedure) Act 1999 was amended in October 2002, with effect from 1 February 2003. It introduced for certain offences, including murder, what are termed "standard non parole periods". The standard non parole period for murder is 20 years imprisonment. It is said to represent "an offence in the middle of the range of objective seriousness" for offences of that kind (s54A). The Court is required to set the standard non parole period unless there are reasons for setting a longer or shorter period. The Court is therefore obliged to assess the objective seriousness of the offence, taking account of aggravating and mitigating factors that bear upon the offence itself ( R v Way (2004) 60 NSWLR 168; R v AJP (2004) 150 A Crim R 575, per Simpson J at para [13]).

66 The Crown has urged, in respect of both Mr Hohaia and Mr Abdulkader, that their crime fell within the mid range of objective seriousness. However, counsel for the offenders have urged that their crime, in each case, falls below the mid range. Counsel pointed to a number of matters. There was no weapon. The murder was unplanned. Neither intended to kill Alexander Szirt.

67 In determining this issue, it is important to characterise the role of each offender in the murder. Mr Hohaia, as I have said, was the principal aggressor. His crime does fall within the mid range of objective seriousness. Mr Abdulkader, however, played a lesser but significant role. In his case, his crime fell below the mid range of objective seriousness.

68 Mr Hohaia was 18 years and 5 months when he committed these crimes. Having regard to his youth, I believe it is appropriate to depart from, and moderate, the standard non parole period.

69 Turning to Mr Abdulkader, he was somewhat older, 21 years, although still young. As mentioned, he fell below the mid range. The standard non parole period remains an important guidepost in respect of the appropriate non parole period for each offender.

70 I intend, in the case of each offender, to impose a fixed term in respect of the charge of robbery and to make the sentence concurrent with the term in respect of murder. Mr Hohaia, as mentioned, also has to be sentenced for the offence of assault occasioning actual bodily harm. The assault occurred on 15 September 2003. I am told that the co-offender was dealt with in the Local Court. That fact is relevant on sentence in respect of Mr Hohaia (cf R v Crombie [1999] NSWCCA 297; R v Doan (2000) 50 NSWLR 115). His co-offender pleaded guilty. A somewhat different Statement of Facts was tendered by the prosecution. The co-offender had no criminal record. The learned Magistrate imposed a twelve month bond.

71 Mr Hohaia, I believe, is in a different position to his co-offender. I intend to deal with the matter upon the basis of the facts as they strike me. It was a brutal assault and, again, an assault where the odds were two against one. Although it was a separate episode, I intend to make the sentence concurrent with the other two sentences. By reason of his earlier offence, which involved brutality very similar to that meted out to Alexander Szirt, Mr Hohaia forfeited any claim to leniency. His sentence should date from 4 December 2003 when he entered custody.

72 In the case of Mr Abdulkader, he entered custody on 10 December 2003. However, the commencement date of his sentence is complicated by the further sentence which was imposed on 11 May 2004. The non parole period in respect of that sentence expired on 10 January 2006. I must, in sentencing someone who is already serving a sentence, be conscious of the principle of totality. Plainly, Mr Abdulkader is entitled to have credit for the five months between 10 December 2003 and 10 May 2004, and some adjustment in respect of the sentence which was imposed on 11 May 2004. I believe, in the circumstances, that it is appropriate to commence his sentence from 10 December 2004.

73 Counsel for each offender has urged me to find special circumstances. There is no question that Mr Hohaia and Mr Abdulkader each have a number of issues which they must deal with, including drugs and alcohol. They will need an extended period of supervision. However, necessarily the parole period which I must fix in each case must itself be significant. I believe, in each case, the parole period will be sufficient without adjustment.

74 John HOHAIA, in respect of the charge of assault occasioning actual bodily harm committed against Lakhbir Singh on 15 September 2003, I sentence you to a fixed term of 9 months imprisonment, commencing on 4 December 2003 and expiring on 3 September 2004, to be served concurrently with the other terms I am about to impose.

In respect of the charge of murder, I sentence you to a term of 24 years, commencing on 4 December 2003; with a non parole period of 18 years commencing on 4 December 2003 and expiring on 3 December 2021.

In respect of the charge of robbery in company, I sentence you to a fixed term of 18 months concurrent with the other terms, that is, commencing on 4 December 2003 and expiring on 3 June 2005.

You will therefore be eligible for release on parole on 3 December 2021. Your sentence will expire on 3 December 2027.

75 Mostafa ABDULKADER, I sentence you to imprisonment for 21 years with a non parole period of 15 years and 9 months. Making due allowance for time in custody, but also taking into account the sentence you are now serving, your sentence will commence on 10 December 2004. Your non parole period will commence on 10 December 2004 and will expire on 9 September 2020.

In respect of the charge of robbery in company, I sentence you to a fixed term of 18 months concurrent with the other term, that is, commencing on 10 December 2004 and expiring on 9 June 2006.

You will therefore be eligible for release on parole on 9 September 2020. Your sentence will expire on 9 December 2025.

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