R v HOBLOS [2012] NSWSC 454

Supreme Court New South Wales

Medium Neutral Citation: R v HOBLOS [2012] NSWSC 454 Hearing dates: 6 - 28 February 2012 Decision date: 08 May 2012 Jurisdiction: Common Law - Criminal Before: Grove AJ Decision: Sentenced to imprisonment consisting of a non-parole period of 21 years commencing on 14 March 2010 and expiring on 13 March 2031 with a balance term of 7 years commencing on 14 March 2031. The effective total term is 28 years. The earliest date for consideration of release to parole is specified as 13 March 2031. Catchwords: CRIMINAL LAW - sentence - murder - joint enterprise - specific role of offender undemonstrated - gangland-style execution Category: Sentence Parties: Regina Mohammed Hoblos Representation: T.R. Bailey (Cr) T. Evers (Offender) Solicitor for Public Prosecutions (Cr) Legal Aid Commission of New South Wales (Offender) File Number(s): 2009/266840

Remarks on SENTENCE 1HIS HONOUR: Mohammed Hoblos, you have been found guilty by a jury of the murder of Hilal Merhi and appear for sentence for that crime. 2It is necessary to find facts, not inconsistent with that verdict, for the purpose of sentence. 3Arrangements were made for a party to celebrate the 21st birthday of Tanya Merhi at her home in Merrylands. The identity of her surname and that of the deceased is coincidental and they were not related. A variety of methods of invitation to the party were employed, including formal writing, text messaging and oral contact. It seemed to be open to invitees to bring other guests but it was desired that these be identified to the hosts. The offender was not the recipient of a direct invitation and there was no evidence that his intended presence was communicated to Ms Merhi or any member of her family. 4The party took place on the evening of the Anzac Day holiday, 25 April 2009. Estimates of the number present unsurprisingly differed but on any view the assembly was very large. A figure of about 150 guests was offered. 5An area of the premises had been allocated for dancing and music was provided there. 6At about 11.00pm there was a pause for cutting a birthday cake, singing the traditional song and some short speeches. Thereafter the party continued and, in particular, people resumed activities in the dance area. One of these people there was Hilal Merhi. 7Two persons wearing hooded upper garments came from the street into the dance area. The hoods were raised over the heads of these intruders. One of them produced a handgun, the evidence points to it being a type called a Glock, and fired five shoots into the body of Hilal Merhi. The shots were fired from relatively close range and the impact of the projectiles was fatal. 8The two intruders then quickly left the area and entered a waiting car, the driver of which then took them from the scene. 9The killing of Hilal Merhi in this manner was referred to as an execution. That was an apt description. I am satisfied to the necessary standard that each of three participants committed the crime of murder. I find that the person who fired the five shots at close range into the body of the victim intended to kill him and by his actions achieved that object. I find that the second intruder was guilty of murder as an aider and abettor, present at the time and aware of the essential facts in that he saw the shooting and was, I conclude, aware of the intention of the shooter and ready and willing to give aid if required. I am further satisfied that the person, conveniently described as the driver of the get-away car, was guilty of murder as a participant in a joint criminal enterprise to kill Hilal Merhi. I infer the agreement from the circumstances that the intruders approached the victim with an obviously already formed intent and that the driver participated by being positioned to and in fact facilitating the escape of those intruders. 10As the trial was conducted, no suggestion was made against the conclusion that the two intruders and the driver of the get-away car were in fact all guilty of murder. I am satisfied that the prisoner was one of these three participants although I am unable to determine which role he fulfilled. 11It was submitted on behalf of the offender that I could not be satisfied beyond reasonable doubt that he was one of the two intruders. I agree, but that does not demonstrate that he was necessarily the get-away car driver. As I have said, I cannot determine which role he played but I am satisfied that he was one of the three participants. The purpose of the submission was to contend that the role of the driver was less serious than that of the intruders and that that should operate to mitigate the level of the offender's culpability. I would not discriminate on that basis. Although, to date, the offender is the only identified participant, all three were engaged in carrying out what was accurately described as an execution and their joint liability does not attract gradations so as to differentiate their individual culpabilities. 12Counsel referred to a variety of individual and incidental testimonies, the absence of observation of facial hair on the intruders such as was worn by the offender at the time, what some witnesses thought they remembered as clothing worn by the intruders, the wearing by one of the intruders of a charm not usually worn by members of the offender's particular religious sect and matters which I will not schedule but are set out in the written submissions. I shall refer to some of these later. 13It suffices to record that none of the matters asserted, either individually or in combination, persuade me even as a matter of probability which role the offender fulfilled. Neither, as I have stated, am I satisfied beyond reasonable doubt what role he fulfilled and the situation remains that I am satisfied that the offender was one of the three participants but I cannot say which one. 14As the jury necessarily, and I also, rejected the testimony of the offender that he was present at the premises in response to an indirectly received invitation and, in effect, a bystander uninvolved in the killing, I must turn to facts demonstrating his inculpation. It scarcely needs to be said that the rejection of his testimony does not operate to prove prosecution allegations. 15No witness identified the intruders or the driver. Unsurprisingly there were inconsistent descriptions by those who saw the hooded intruders. The conclusion which I draw from the evidence is that it does not exclude the offender from possibly being one of them. Some attention was paid to an observation by a witness that one of the intruders was wearing an amulet in the shape of a sword or scimitar. The wearing of such was evidenced as the custom of adherents to the faith of Islam other than the Sunni sect of which the offender is a member. I do not find that anything turns on this. I am unable to determine whether such a charm was worn for a genuine or deceptive purpose. I find the evidence was of no weight in establishing the possible identity of the wearer. In so saying, I expressly do not ignore the onus of proof borne by the prosecution. 16I find that the proof of complicity commences with a conversation between the offender and Eileen McGeachy (also know as Giselle) at the Carnes Hill Market Place. Although Ms McGeachy was vague about dates, the conversation clearly related to the killing of Hilal Merhi and was subsequent to it. The extent of what amounted to an admission by the offender was that he was "involved" and her testimony was that he added no detail. In that he said that he was "involved" I am satisfied that he was referring to involvement in the killing. 17I should deal with an aspect of Ms McGeachy's evidence which was the subject of particular dispute. A transcript of cross-examination records her as saying "Well, he never said that he was involved. If he was involved, I wouldn't know, so". The first sentence, if accurately recorded, is a plain contradiction of her evidence in chief that he had told her that he was involved. The Crown contended that what the witness had said was "Well, he never said how he was involved". Counsel for the offender did not accept that this was correct. For the purposes of the jury, I instructed then that it was for them to determine what they heard the witness say and I do not need to recapitulate the direction given. 18For present purposes, I am satisfied that the evidence was as contended by the Crown for these reasons. The immediately following question by the cross-examiner was "I suggest to you he didn't use the word involved". That question would not logically follow upon a concession that the witness had said "he never said he was involved". Next, in cross-examination of the offender, it was put to him that he had told Ms McGeachy at Carnes Hill shops that he was involved. No objection was raised that the basis for such question had been extinguished by Ms McGeachy resiling from her evidence in chief. It would be more than surprising if any witness having flatly contradicted the critical part of her evidence in chief had that evidence in chief put to the accused but this was not noticed by counsel. 19As I shall later again make a reference, there is some fortification for the evidence of Ms McGeachy in an exchange between the offender and his sister in a telephone call which was intercepted when he said of Ms McGeachy concerning a proposal that she should say that she was going to a party with him that "She knows a bit". That would be consistent with her having been told by him of "involvement" without any detail. 20The next matters of inculpation of the offender derive from telephone conversations in which he participated some three or four months after the killing. The offender was in prison serving a sentence for driving whilst disqualified. Whilst there he came into possession of a mobile phone but investigators did not interfere with that possession and obtained authorisation to intercept his calls. 21No doubt there were many calls which were not perceived to be relevant but the evidence manifests a sequence of exchanges which I am satisfied showed a consciousness of guilt of the offender's participation in the killing of Hilal Merhi. Of course, the language used was frequently guarded but it is the combination, including timing and sequence, which leads to the conclusion, although in isolation many of the utterances might be categorised as raising only suspicion. 22After 10.30pm on 6 August 2009, Mohammed El-Hage called the offender from a public telephone. Earlier police had shown him telephone records locating the offender's phone in the area where the party was taking place on the previous Anzac Day. El-Hage had been at the party and was in the company from time to time of the victim. There were numerous calls from the offender's phone to El-Hage's phone leading up to immediately before the killing but most were unanswered and diverted to voicemail. El-Hage, the offender and the victim were acquainted with each other. 23It is significant that, when police informed El-Hage that they could locate the offender at the party, he proceeded to make the call from the public telephone. It is consistent with a belief on his part that the offender needed to be put on notice that he might need to explain his presence at Merrylands, a need which would hardly be required if the offender were merely an expected guest who had been invited to come along or for that matter, an uninvited guest, with no more intent than attending the party. 24The content of the call demonstrated an acknowledgement by the offender of a suggestion to explain his presence at the party and his reason for departure. 25Bearing in mind that the party was the occasion of an execution style killing taking place, after hearing from El-Hage, the offender, late that night made a series of calls. First he rang Eileen McGeachy. He gave her as a topic reference, the situation that he had talked to her about at Carnes Hill. This links directly to her evidence that it was there where he told her that he was "involved" when discussing the death of Hilal Merhi. In the call he asked her for a favour although what the favour was was not clearly articulated. What he did say was that he might never come out, obviously from gaol, or until after a "big whack" and in response to a question about what he meant he said he was talking about "life". 26The call from El-Hage had related to the party at which the killing occurred. The only rational link between the party and a fear of life imprisonment or near thereto in the particular context was responsibility for that killing. 27After this call the offender rang his sister. He gave her cautions about the use of telephones and talking to police. Again there is a link in his expression to her of apprehension about gaol for his whole life. 28The next call is to a friend, Suzy Dzevlan, to whom he asked that El-Hage be asked to get in touch. As noted, El-Hage had made the call shortly beforehand from a public telephone. Again the offender tells Ms Dzevlan that he might be doing "life". 29Finally, on this note, the offender called Amanda Viola who had been his girlfriend at one stage and, somewhat cryptically, he asked her to look after his family. On 8 August, some two days after the previous exchanges, Amanda Viola called the offender. This call was terminated when, the offender said, the authorities were doing a check and he called her back. Essentially the two calls combined to make one communication. 30The offender asked her to do him a favour by saying that she had dropped him off at the party. She agreed to the request. Her evidence was that she had not done so. Both she and the offender must have known that what was requested to be said was false. Amanda Viola, in these conversations, apparently with enthusiasm, joined in the proposed deception to the extent of suggesting that the story be embroidered by detail of being in the City together and getting drunk at Star City. These suggestions were adopted by the offender. 31Three days after this contact, the offender again rang his sister. He told her that he had been questioned by detectives about Hilal Merhi. Although he had planned with Amanda Viola to purport to have been with her in the City on the night, it would take little reflection to remember that El-Hage had told him that police were in possession of telephone records which tended to locate him at Merrylands. He asked his sister to persuade Giselle (Eileen McGeachy) to say that he was with her going to a party. 32The offender's sister was not a witness and the extent of her knowledge was unexplored however she asked, referring to Ms McGeachy, and speaking in Arabic "Does she know, did you tell her?". This brought the response that I earlier mentioned, namely, "She knows a bit but tell her to do this as a favour". Later he elaborated to his sister that what should be said was that he and Hage (El- Hage) were drunk and that the offender was with Ms McGeachy to whom he was engaged at the time. 33Although the word itself does not incriminate, it can be observed that the offender was describing the intended deception as "the alibi". 34Two further calls to the offender's sister and Amanda Viola referred to investigations proceeding with unspecified people being questioned and, to Ms Viola, an exhortation to say nothing if approached, that is, by inference if approached by police. 35I recognise of course that the Crown case is dependant upon what amounted to circumstantial admissions however I am satisfied that there is no rational explanation for the overall content of what the offender said to Ms McGeachy at Carnes Hill and to those to whom he spoke on the intercepted telephone calls other than that he had been one of the participants in carrying out the killing of Hilal Merhi. 36Counsel for the offender submitted that it was "the Crown case theory that the motive for the killing was an act of retaliation against (the victim) for (his) murder of (a) Mr Massoum". The Crown did not assert that motive. There was evidence that there were apparently some person or persons who had expressed that view but it went no further. Why Hilal Merhi was killed remains unknown. Curiously, and I emphasise that it is not evidential, in a victim impact statement the deceased's mother said that he "wasn't able to leave the house (be)cause of being afraid that he was going to get seen and killed". What might have given rise to such a situation was not stated. 37The submission by Counsel invited a conclusion that the verdict was consistent with finding that the offender's role was that of assisting in a purpose generated and planned by others. I do not reach such a conclusion. The offender was one of three people putting into effect a decision which inevitably had previously been made to execute Hilal Merhi. I do not know from where the inspiration to kill him was derived. 38The foregoing sufficiently explains reasons for rejecting the submission that the killing was below the mid-range of seriousness of the crime of murder. However I also reject the Crown's submission that the level of culpability was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met by the imposition of a life sentence. Leaving aside any other considerations, a great deal is unknown about the circumstances out of which the killing arose, but such a finding of extremism would require reliance upon a significant degree of speculation. One example of the flaws in the Crown submission is attempting to answer the question why the crime was committed in a public place by contending that there could have been an "intended message". I do not need to elaborate the difficulties which the onus of proof presents to that contention. 39Before turning to other matters I should acknowledge receipt of the victim impact statement read by the mother of the victim to which I have already made some reference. What is acknowledged is the grief and continuing pain of a mother who has lost her son and the same feelings have no doubt been engendered in other family members. Felonious taking of life is rightly considered by society as conduct meriting condemnation and these observations are intended to reflect that condemnation and to offer condolences to the family who have suffered the loss. 40Subjective matters pertinent to the offender are substantially to be extracted from a psychological report by Ms Player which was tendered on his behalf. She did not seek any comment from him as an account of the offence but noted that he told her he was intoxicated with cocaine and methylamphetamine on the night that the crime took place. This was not a matter raised or explored in his testimony at trial. I do not summarise the entirety of her report but have taken its content into account. I note the history, pre offence, of daily cannabis use, nasal ingestion of cocaine at least twice a week and smoking what is commonly called "ice" every two or three days. The last mentioned two drugs were described by the offender as elevating feelings of anger and aggression. 41The offender described a lifetime of anger and fighting commencing from early childhood. He has attained only a basic education and, although a single man, engaged in employment very sporadically. Whilst I acknowledge Ms Player's apparent sincerity in looking to the future, I see no grounds for optimism about the offender obtaining a decent degree of rehabilitation. 42The isolated factor of promise is continuing family support which has been demonstrated by diligent visitation by his family to the offender whilst he has been in gaol to date. 43It is not appropriate to "checklist" statutory factors of aggravation but it is obvious that the seriousness of this offence needs to be gauged with an appreciation that a handgun was used and fired in the house, effectively of a stranger, with risk to other people on a crowded dance floor which risk, thankfully, did not fall due. 44I agree with the Crown's submission that the attendance by the offender at the victim's funeral does not, even as a matter of probability, show remorse. It has not been shown to be harboured by the offender otherwise. I make explicit that I have used the statutory prescription of maximum penalty and standard non-parole period for guidance in assessing sentence which inevitably must be imprisonment for a substantial term of years. 45I also note the references by Counsel to statistical and forensic material. The intention of these remarks is primarily to enable the offender to be informed in language that he can understand of the reasons for the imposition of sentence. That is not to say that I should not also expose the processes of reasoning leading to the assessment. 46An express submission was made that I should extend the balance term of any imprisonment during which the offender may be eligible for parole, relying on the views of Ms Player regarding the need for intensive and long-term support for transition from custody back into the community. I do not find the necessary special circumstances and, in any event, the application of the statutory formula will provide ample scope to see if such hope for transition can be fulfilled. 47The offender is a comparatively young man, born on 22 December 1981, nevertheless it is inevitable that a substantial sentence be imposed, an important element of which needs to convey that assisting in any way in the perpetration of a gangland-style execution will be met with significant severity. As noted, when the offender was charged he was in custody on an unrelated matter but he has since been detained without bail. Counsel have agreed that sentence now to be imposed should commence on 14 March 2010 and I consider that appropriate. 48Mohammed Hoblos, for the murder of Hilal Merhi you are sentenced to imprisonment consisting of a non-parole period of 21 years commencing on 14 March 2010 and expiring on 13 March 2031 with a balance term of 7 years commencing on 14 March 2031. 49The effective total term is 28 years. The earliest date for consideration of release to parole is specified as 13 March 2031.