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Supreme Court 8 May 2012

R v HOBLOS

[2012] NSWSC 454

HomicideFirearms & weapons
CRIMINAL LAW SENTENCE MURDER JOINT ENTERPRISE GANGLAND STYLE EXECUTION

Citation: R v Hoblos [2012] NSWSC 454
Court: Supreme Court of New South Wales
Date: 8 May 2012
Judge: Grove AJ

Background

The offender was convicted by jury of the murder of Hilal Merhi, who was shot five times at close range during a 21st birthday party at a private home in Merrylands on Anzac Day, 25 April 2009. Two hooded intruders entered the dance area of the crowded party and one produced a Glock handgun, firing fatal shots into the victim. The pair then fled to a waiting getaway car and left the scene. The killing was described by the court as a gangland-style execution.

Three participants were identified by the court as having committed murder: the shooter, a second intruder who aided and abetted, and the getaway car driver. The offender maintained at trial that he had attended the party as an uninvited but innocent bystander. The jury rejected that account.

The sentencing proceedings required the court to make factual findings about the offender's role, given that the prosecution could not prove whether he was one of the two intruders or the driver.

  • What facts, consistent with the jury's verdict of guilty, could the court find for the purposes of sentencing?
  • Whether the offender's specific role within the joint criminal enterprise (shooter, aider, or driver) could be determined, and whether that determination affected the level of his culpability.
  • What sentence was appropriate in all the circumstances, including the offender's age, criminal history, and the gravity of a gangland-style execution in a crowded private home?

Decision

Grove AJ was satisfied beyond reasonable doubt that the offender was one of the three participants in the murder, but could not determine which role he fulfilled. No witness identified the intruders or the driver, and the various circumstantial matters raised by the defence, including the absence of observed facial hair, clothing descriptions, and the wearing of a charm inconsistent with the offender's religious sect, did not establish the offender's specific role even on the balance of probabilities.

The primary evidence of the offender's involvement came from two sources. A woman known as "Giselle" gave evidence that the offender told her after the killing that he was "involved," without providing detail. Intercepted telephone calls made while the offender was in prison on an unrelated matter also contained incriminating statements, including references to participation in the killing and discussion about the investigation of it.

The defence argued that, if the offender was the getaway driver rather than an intruder, his culpability should be treated as lower. Grove AJ rejected that submission. All three participants were engaged in carrying out an execution and their joint liability did not attract gradations that would differentiate individual culpabilities. The court found no basis for mitigation on that ground.

On sentence, the court took into account the offender's comparatively young age at the time of the offence (born December 1981) and the absence of demonstrated remorse. The court noted that the killing was carried out with a handgun fired inside a private home on a crowded dance floor, creating risk to others beyond the intended victim. No special circumstances were found to justify altering the statutory balance between non-parole period and balance term.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of 21 years, commencing 14 March 2010 and expiring 13 March 2031.
  • A balance term of 7 years commences 14 March 2031.
  • The total effective sentence is 28 years.
  • The earliest date for parole consideration is 13 March 2031.

Key Takeaways

  • Where a court is satisfied that an offender was one of three joint enterprise participants in a murder but cannot determine which specific role he played, it remains open to sentence that offender on the basis of his participation in the enterprise without ascribing the least serious role to him.
  • A joint criminal enterprise to commit a gangland-style execution does not give rise to graduated culpability between participants simply because one role (such as driving a getaway car) might appear less directly violent than another.
  • Rejection of an accused's own evidence at trial does not, of itself, prove any prosecution allegation; the court must identify affirmative evidence of inculpation from other sources.
  • Admission evidence given by a witness can retain probative weight for sentencing purposes even where a seemingly contradictory statement appears in cross-examination, provided the sentencing judge analyses the context of the exchange and provides reasons for preferring one version.
  • A substantial sentence with a lengthy non-parole period is appropriate where a murder is carried out as a premeditated execution in a crowded private venue, reflecting both the gravity of the offence and the need for the sentence to signal the severity with which participation in such conduct will be treated.

Legislation and Cases Referenced

No specific legislation or cases were cited in the metadata or in the portions of the judgment provided.