Citation: Regina v Abdulkader and Hohaia [2006] NSWSC 866
Court: Supreme Court of New South Wales, Common Law Division
Date: 5 September 2006
Judge(s): Kirby J
Background
Two men were convicted after a lengthy trial of the murder of Alexander Szirt on 3 December 2003 and of robbery in company committed shortly before his death. The group had spent the evening drinking alcohol and smoking cannabis at a house in Belmore. The deceased, who was sober, had attended the gathering at the invitation of the group.
During the night, the deceased was robbed of his wallet and mobile phone, forced to reveal his bank PIN, and taken to an ATM where nearly $190 was withdrawn from his account. He was subjected to repeated and savage assaults over several hours. His body was found in his car in the early hours of the morning.
One offender, Hohaia, was also sentenced separately for an assault occasioning actual bodily harm committed against a different victim in September 2003, to which he had pleaded guilty before a different judge. The other offender, Abdulkader, was already serving an existing sentence at the time of sentencing, which required consideration of the totality principle.
Legal Issues
- Whether the murder fell within the mid-range of objective seriousness
- The precise role of each offender in the murder, including whether they were acting in concert or whether one was aiding and abetting the other
- The relevance of each offender's significant intoxication by drugs and alcohol at the time of the offences
- How to fix the commencement date of Abdulkader's sentence given that he was already serving an existing sentence
- Whether special circumstances existed for either offender justifying an adjustment to the standard ratio between non-parole period and head sentence
- The appropriate approach to totality when imposing cumulative and concurrent sentences
Decision
Kirby J found that Hohaia was the principal aggressor throughout the night. He had attempted to choke the deceased inside the house, punched him repeatedly about the head, and was responsible for the sustained assault that ultimately caused death. Abdulkader was present during the initial assault, drove the deceased to the ATM, and returned to participate in the later violence outside the house. His Honour found Abdulkader's role was at a lower level of culpability than Hohaia's, but he was nonetheless a participant in the fatal assault.
The court assessed the murder as falling within the mid-range of objective seriousness. The severe and prolonged nature of the violence was a significant aggravating feature, though the intoxication of both offenders was taken into account as relevant context, without excusing the conduct.
On the question of special circumstances, both offenders had significant drug and alcohol issues requiring extended supervision on parole. Kirby J concluded, however, that the statutory parole periods that would result from the proposed sentences would themselves be sufficient to address those needs, and no adjustment to the standard ratio was warranted.
Regarding Abdulkader's commencement date, the court applied the totality principle, gave credit for time already served, and made an adjustment to account for the earlier sentence he was serving. His sentence was fixed to commence on 10 December 2004 rather than the date of arrest.
Orders Made
John Hohaia:
- Assault occasioning actual bodily harm: fixed term of 9 months, commencing 4 December 2003, expiring 3 September 2004 (concurrent)
- Murder: 24 years imprisonment, commencing 4 December 2003; non-parole period of 18 years, expiring 3 December 2021
- Robbery in company: fixed term of 18 months, commencing 4 December 2003, expiring 3 June 2005 (concurrent)
- Eligible for parole: 3 December 2021; sentence expires 3 December 2027
Mostafa Abdulkader:
- Murder: 21 years imprisonment with a non-parole period of 15 years and 9 months, commencing 10 December 2004; non-parole period expiring 9 September 2020
- Robbery in company: fixed term of 18 months, commencing 10 December 2004, expiring 9 June 2006 (concurrent)
- Eligible for parole: 9 September 2020; sentence expires 9 December 2025
Key Takeaways
- Where two offenders participate in a murder, the sentencing court will assess each person's individual role carefully, distinguishing between the principal aggressor and a participant acting in concert at a lower level of culpability, with that distinction reflected in the length of sentence imposed.
- Significant intoxication by drugs and alcohol at the time of an offence may be taken into account as a contextual matter in sentencing, but it does not operate as a mitigating factor that reduces the objective seriousness of sustained and savage violence.
- When an offender is already serving a sentence, the totality principle requires the court to consider the overall effect of the cumulative sentences, including giving appropriate credit for time already served, and to fix a commencement date that reflects a just and proportionate total term.
- A finding that the statutory parole period flowing from the head sentence will be sufficient to address an offender's rehabilitation needs can displace a claim for special circumstances, even where genuine drug and alcohol issues are established.
- The Supreme Court assessed a prolonged and savage murder committed in the course of a robbery, where the victim was held at the group's mercy over several hours, as falling within the mid-range of objective seriousness for the offence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 19A(1), 59, 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- 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