R v AEM - [2002] NSWCCA 58

No judgment structure available for this case.

CITATION: Regina v AEM Snr; Regina v KEM; Regina v MM [2002] NSWCCA 58

FILE NUMBER(S): CCA 60605/01; 60606/01; 60748/01

HEARING DATE(S): 1 February 2002

JUDGMENT DATE:
13 March 2002

PARTIES :

Regina
AEM Snr
KEM
MM

JUDGMENT OF: Beazley JA at 1; Wood CJ at CL at 1; Sully J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0096; 01/11/0106

LOWER COURT JUDICIAL
OFFICER : Latham DCJ

COUNSEL : Crown: G E Smith
AEM Snr: P S Hastings SC/R Burgess
KEM: R S Toner SC
MM: D G Dalton

SOLICITORS: Crown: S E O'Connor
AEM Snr: D J Humphreys
KEM: Bud Cham & Associates
MM: Marsdens

CATCHWORDS: Crown Appeal - Sentence - Aggravated Sexual Assault - Pearce v The Queen - Totality - Concurrent/Cumulative Sentences - General Deterrence - Pattern of Sentencing - Double Jeopardy - Special Circumstances

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)

CASES CITED:
R v RKB (unreported, NSWCCA, 30 June 1992)
R v Rushby [1999] NSWCCA 104
R v Lewis (unreported NSWCCA, 14 December 1993)
R v Bus and S (unreported NSWCCA 3 November 1995)
R v WKR (1993) 32 NSWLR 447
R v Oliver (1982) 7 A Crim R 174
Pearce v The Queen (1998) 194 CLR 610
R v Bradley [1979] 2 NZLR 262
R v Visconti [1982] 2 NSWLR 104
R v Clarke [2001] NSWCCA 223
R v Kalache (2000) 111 A Crim R 152
R v Holder and Johnson [1983] 3 NSWLR 245
R v Morgan (1993) 70 A Crim R 368
R v Bavadra (2000) 115 A Crim R 152
R v Barton [2001] NSWCCA 63
R v Lemene (2001) 118 A Crim R 131
R v Hammoud (2000) 118 A Crim R 66
Radich [1954] NZLR 86
Nekuda (1988) 39 A Crim R 5
R v Wong; R v Leung (1999) 48 NSWLR 340
R v Rushby (1977) 1 NSWLR 594
R v Tait (1979) 46 FLR 386
R v Hartikainen (unreported, NSWCCA, 8 June 1993)
R v Nichols (1991) 57 A Crim R 391
R v DAR (unreported NSWCCA, 2 October 1997)
R v Mazzilli [2001] NSWCCA 117
Pham (1991) 55 A Crim R 128
R v Tran [1999] NSWCCA 109
Griffiths v R (1971) 137 CLR 293
Peisley (1991) 58 A Crim R 167
R v Moon (2000) 117 A Crim R 497
R v Pawa [1978] 2 NZLR 190
R v Bloomfield (unreported, NSWCCA, 15 July 1998)
R v Shorten (unreported, NSWCCA, 10 September 1997)
R v Singh (unreported, NSWCCA, 16 December 1994)
Talbot (unreported, NSWCCA, 19 December 1997)
R v Agafili (unreported, NSWCCA, 1 May 1996)
R v Brennan (unreported, NSWCCA, 29 May 1995)
R v Harrison (1997) 93 A Crim R 314
R v McLear (unreported, NSWCCA, 1 September 1992)
R v McLawrence (unreported, NSWCCA, 28 September 1995)
R v Burns (unreported, NSWCCA, 21 September 1994)
R v Baker (unreported, NSWCCA, 2 August 1994)
Rose (unreported, NSWCCA, 23 May 1996)
Power v The Queen (1973) 131 CLR 623
R v GDR (1994) 35 NSWLR 376
R v Simpson [2001] NSWCCA 534

DECISION: Crown appeal allowed; Respondents re-sentenced

Regina v AEM Snr 60605/2001

Regina v KEM 60606/2001

Regina v MM 60748/2001

Summary

The three appeals before the Court of Criminal Appeal (the Court) were brought by the Crown against the adequacy of the sentences imposed upon the offenders for a series of sexual assaults committed against two 16 year old female victims on 5 September 2000. The victims are identified by their initials so as to protect their identity. Two of the offenders were juveniles at the time the offences were committed and are similarly identified by initials as required by section 11 of the Children’s (Criminal Proceedings) Act 1987 (NSW). The adult offender is identified by initials so as to protect the identity of the victims and the juvenile co-offenders.

Each offender pleaded guilty before the sentencing judge to two counts of sexual assault without consent in circumstances of aggravation, under s 61J of the Crimes Act 1900 (NSW). The maximum penalty under s 61J is 20 years imprisonment. In addition, each offender had one or more offences under s 61J, committed against the same victims, taken into account under the provisions of s 33 of the Crimes (Sentencing Procedure) Act NSW 1999 (known as a Form 1 procedure).

The Court has determined that, in the course of the sentencing process, her Honour erred in the application of sentencing principle and that the sentences imposed by her were manifestly inadequate given the high degree of criminality involved in the commission of the offences.

During the course of its judgment the Court has stressed that the primary objective of sentencing is the protection of the community. General deterrence and institutional denunciation has, therefore, played a primary role in the approach which the Court has taken to the sentencing of these offenders. The youth of offenders, both generally in respect of the crimes of this nature, and in the case of these individual offenders, did not displace the prominence which must be given to these principles.

Both before the sentencing judge and on the re-sentence the offenders were entitled to have their pleas of guilty taken into account. It was also appropriate to give consideration to their youth as part of the Court’s consideration in setting the non parole period under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). In undertaking that process, the Court agreed with the sentencing judge that in the case of each offender there were “special circumstances” and that it was appropriate to alter the proportion of the non-parole period in favour of the offender.

In addition to the usual sentencing principles, the Court on the appeal was required to have regard to the principle of double jeopardy which operates so as to require the Court to impose the least sentence which could have been imposed by the sentencing judge. The Court has also determined that the sentences in each case should be partially accumulated because of the discrete nature of the various offences committed by each of the offenders and so as to properly reflect the totality of the criminality involved in the commission of the offences.

The Court has determined that given the high level of criminality involved, each of the sentences imposed upon the offenders should be increased significantly. The Court has also determined that in the case of the juveniles, KEM and MM, after consideration of all the evidence, including their current circumstances, their prospects of rehabilitation are best promoted if a portion of their sentences is served in a Juvenile Detention Centre after each turns 18. Both will, however, spend a significant period in an adult gaol (approximately 8 years in the case of KEM and approximately 6 years in the case of MM).

The position in respect of each offender may be summarised as follows:

AEM
Sentence imposed by sentencing judge

AEM Snr was sentenced on each count in the indictment to a term of imprisonment of 6 years, both sentences to date from 7 September 2000 and to expire on 6 September 2006. The sentencing judge specified a non parole period in respect of each offence of 4 years similarly to date from 7 September 2000 and to expire on 6 September 2004.

Sentences imposed by the Court on resentence

AEM Snr has been sentenced in respect of count 1, to a term of imprisonment of 11 years with a non parole period of 7 years to date from 7 September 2000 and expire on 6 September 2007. In respect of count 2, AEM Snr has been sentenced to a term of imprisonment of 11 years with a non-parole period of 7 years to date from 7 September 2002 and to expire on 6 September 2009.

The effect of these sentences is that AEM Snr has been sentenced to an overall sentence of 13 years. The Court has specified an overall non-parole period, that is the time which must be served in custody, of 9 years, until 6 September 2009.

KEM
Sentence imposed by the sentencing judge

KEM was sentenced on each count in the indictment to a term of imprisonment of 5 years and 7 months both sentences to date from 7 September 2000 and to expire on 6 April 2006. The sentencing judge specified a non parole period in each respect of each offence of 3 years 6 months similarly to date from 7 September 2000 and to expire on 6 March 2004.

Sentences imposed by the Court on resentence

KEM has been sentenced in respect of Count 2, to a term of imprisonment of 10 years with a non-parole period of 6 years to date from 7 September 2000 and to expire on 6 September 2006. In respect of Count 1 KEM has been sentenced to a term of imprisonment of 12 years with a non parole period of 8 years to date from 7 September 2002 and to expire on 6 September 2010.

The effect of these sentences is that KEM has been sentenced to an overall sentence of 14 years. The Court has specified an overall non parole period, that is the time which must be served in custody, of 10 years, until 6 September 2010. The Court has further directed that a portion of that period, until 20 November 2002, be served in a Juvenile Justice Centre so as maximise KEM’s rehabilitation prospects.

MM
Sentence imposed by the sentencing judge

MM was sentenced on count 1 in the indictment to a term of imprisonment of 5 years and 6 months to date from 7 September 2000 and to expire on 6 March 2006. The sentencing judge specified a non parole period of 4 years similarly to date from 7 September 2000 and to expire on 6 September 2004.

In respect of count 2 in the indictment MM was sentenced to a term of imprisonment of 6 years to date from 7 September 2000 and to expire on 6 September 2006. The sentencing judge specified a non parole period of 4 years similarly to date from 7 September 2000 and to expire on 6 September 2004.

Sentence imposed by the Court on resentence

In respect of count 1 on the indictment MM has been sentenced to a term of imprisonment of 10 years with a non-parole period of 7 years to date from 7 September 2000 and to expire on 6 September 2007. In respect of count 2 in the indictment MM has been sentenced to a term of imprisonment of 11 years with a non parole period of 8 years to date from 7 September 2002 and to expire on 6 September 2010.

The effect of these sentences is that the Court has sentenced MM to an overall sentence of 13 years and has specified an overall non parole period, that is the time which must be served in custody, of 10 years, until 6 September 2010. The Court has further directed that a portion of that period, until 16 June 2004, be served in a Juvenile Justice Centre so as maximise MM’s rehabilitation prospects.

CCA 60605/2001
CCA 60606/2001
CCA 60748/2001

BEAZLEY JA
WOOD CJ at CL
SULLY J
Wednesday, 13 March 2002

REGINA v AEM (S nr )

REGINA v KEM

REGINA v MM

FACTS

The Court had before it three Crown appeals against the inadequacy of sentences imposed upon the respondents by Latham DCJ. Each respondent had pleaded guilty to two counts of aggravated sexual assault which carried a maximum penalty of 20 years imprisonment: s 61J Crimes Act 1900 (NSW). The offences were committed against two 16 year old female victims. In addition each respondent had one or more offences for sexual assault committed against the same victims taken into account under s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Form 1 offences).

The victims had gone to Beverly Hills train station at about 1 am on 5 September 2000 to catch a train home. As trains had stopped running they decided to catch a taxi. Whilst waiting for a taxi outside the train station a car containing the respondents and two other males stopped. The males got out of the car and approached the two victims. They offered them a lift home which the victims refused. Eventually, however the victims got into the car with the men.

They were taken to the residential home of offenders AEM (Snr) and KEM in Villawood. The victims were forcibly detained at the home over a four-hour period and were subjected to a series of sexual assaults of the most degrading kind by AEM Snr, KEM and MM.

In addition the victims were kept separate for a lengthy period of time, were subjected to physical violence and numerous death threats. A knife was produced by two of the offenders (on separate occasions) in a way which could only have provoked fear of death or mutilation in the victims.

The sentencing judge accepted that the objective features of the offences justified the Crown’s submission that the offences were at the upper end of the scale of severity.

In respect of AEM Snr (aged 19 years and 5 months at the time of commission of the offences) the sentencing judge imposed a sentence on each count in the indictment to a term of imprisonment of 6 years to be served concurrently. Her Honour fixed a non-parole period in each case of 4 years.

In respect of KEM (aged 16 years and 10 months at the time of commission of the offences) the sentencing judge imposed a sentence on each count in the indictment to a term of imprisonment of 5 years and 7 months to be served concurrently. Her Honour fixed a non-parole period in each case of 3 years and 6 months.

In respect of MM (aged 16 years and 3 months at the time of commission of the offences) the sentencing judge imposed a sentence on count 1 in the indictment to a term of imprisonment of 5 years and 6 months. Her Honour fixed a non-parole period of 4 years. On count 2 her Honour imposed a term of imprisonment of 6 years with a non-parole period of 4 years. Her Honour directed that the whole of KEM and MM’s term of imprisonment be served in a Juvenile Justice Centre.

HELD per the Court

Pearce v The Queen

(b) properly address the objective seriousness of the offences when considering the principle of totality;

(c) give appropriate weight to the Form 1 offences when sentencing in respect of the principal offence so as to reflect the overall criminality involved: s33 of the Crimes (Sentencing Procedure) Act 1999 (NSW);

(d) adequately address whether the sentences should be served concurrently or cumulatively;

(e) give adequate weight to the principles of deterrence and denunciation.

(ii) The sentences were manifestly inadequate.

(iii) General deterrence and public denunciation were of primary importance in sentencing for offences under s 61J. The prominence usually given to the youth of an offender had to give way to these principles: Radich [1954] NZLR 86, R v Nichols (1991) A Crim R 391, Pham (1991) 55 A Crim R 128.

(iv) Past cases of aggravated sexual assault referred to by the Crown and the respondents failed to establish a relevant pattern of sentencing for these offences: R v Oliver (1982) A Crim R 174, Griffiths v R 137 CLR 293, R v Visconti [1982] 2 NSWLR 104.

(v) The objective seriousness of the offences was such that, even after allowing for the principle of double jeopardy which operates on a Crown appeal against sentence: Rose (unreported, New South Wales Court of Criminal Appeal, 23 May 1996), the sentences imposed by the trial judge had to be significantly increased.

(vi) There were special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) warranting a departure from the statutory non-parole period.

ORDERS

AEM Snr

(i) Sentences are set aside;

(ii) Convictions are confirmed;

(iii) On the charge of aggravated sexual assault in respect of DB (Count 1), AEM Snr is sentenced to a term of imprisonment of 11 years, to commence on 7 September 2000 and to conclude on 6 September 2011. We specify a non-parole period of 7 years to commence on 7 September 2000 so that AEM Snr is eligible for release on 6 September 2007.

(iv) On the charge of aggravated sexual assault in respect of JH (Count 2) (being the principal offence for the Form 1 offence) AEM Snr is sentenced to a term of imprisonment of 11 years, to commence on 7 September 2002 and to conclude on 6 September 2013. We specify a non-parole period of 7 years to commence on 7 September 2002 so that AEM Snr is eligible for release on 6 September 2009.

KEM

(i) Sentences are set aside;

(ii) Convictions are confirmed;

(iii) On the charge of aggravated sexual assault (Count 2) KEM is sentenced to a term of imprisonment of 10 years, to commence on 7 September 2000 and to conclude on 6 September 2010. We specify a non-parole period of 6 years to commence on 7 September 2000 so that KEM is eligible for release on 6 September 2006.

(iv) On the charge of aggravated sexual assault (Count 1) (being the principal offence for the Form 1 offences) KEM is sentenced to a term of imprisonment of 12 years, to commence on 7 September 2002 and to conclude on 6 September 2014. We specify a non-parole period of 8 years to commence on 7 September 2002 so that KEM is eligible for release on 6 September 2010.

(v) KEM is to serve his sentence in a Juvenile Justice Centre until 20 November 2002 when he attains 19 years of age.

MM

(i) Sentences are set aside;

(ii) Convictions are confirmed;

(iii) On the charge of aggravated sexual assault in respect of DB (Count 1), MM is sentenced to a term of imprisonment of 10 years, to commence on 7 September 2000 and to conclude on 6 September 2010. We specify a non-parole period of 7 years to commence 7 September 2000 and to expire on 6 September 2007.

(iv) On the charge of aggravated sexual assault in respect of JH (Count 2) (being the principal offence for the Form 1 offences) MM is sentenced to a term of imprisonment of 11 years, to commence on 7 September 2002 and to conclude on 6 September 2013. We specify a non-parole period of 8 years to commence on 7 September 2002 and to expire on 6 September 2010.

JUDGMENT

1 THE COURT: The Court has before it three Crown appeals against the inadequacy of the sentences imposed upon the respondents for their convictions for offences of aggravated sexual assaults committed against two 16 year old female victims on 5 September 2000. Each respondent had pleaded guilty to the offences shortly after the indictments were prepared. The circumstance of aggravation specified in the indictment in each case was that the offence was committed in the company of the other co-offenders. Each respondent had one or more offences for sexual assault committed against the same victims taken into account on the sentence under s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Form 1 offences).

2 The offence of aggravated sexual assault is an offence under s 61J of the Crimes Act 1900 (NSW) and carries a maximum penalty of 20 years imprisonment.

Facts

3 The two young female victims had gone to Beverly Hills railway station at about 1am on 5 September 2000 to catch a train home. As there were no trains running at that time they went to the King Georges Road entrance of the station to catch a taxi. Before they were able to get a taxi, a car containing the three respondents and two other young males stopped. One of the other two young men was AEM Jnr, who was then aged 17. He was also convicted and sentenced in respect of offences relating to the events which occurred that night. There is no appeal against his sentence. The fifth person remains unidentified.

4 The young males got out of the car and spoke to the girls. They offered the girls a lift home which the girls refused. Eventually, however, the girls got into the car with the young men.

5 The car was driven to a residential garage where MM got out of the car and broke into and stole another car. Both cars were then driven off at high speed to a residential property which was the home of some of the offenders. The three respondents and AEM Jnr took the victims into the house. It appears the fifth male did not enter the house.

6 The offenders took the girls to the lounge room, where they sat around for a while. AEM Snr was smoking cannabis at this point. The victims described themselves as being very nervous but that as one of the offenders (AEM Jnr) was being “friendly” they began to feel they may not be in danger. They told the offenders they were tired and one of the offenders suggested that they sleep the rest of the night at the house and make their way home in the morning. They were taken to a bedroom (the first bedroom) which contained two single beds pushed together and a set of bunks. The girls got into one of the beds and huddled together. AEM Snr and AEM Jnr came into the room. DB commenced to become quite distraught and JH attempted to comfort her.

7 AEM Snr got into the bed next to JH. JH had her back to him. He began to rub her and hug her. JH protested but AEM Snr kept saying “[w]e’re just gonna have fun tonight”. JH said “[w]hat part of ‘no’ don’t you understand” to which he replied “[d]on’t shit me”.

8 AEM Snr then left the room, but AEM Jnr remained. AEM Snr returned shortly after and said, “[w]hose (sic) gonna join me in the other room?”. Both of the victims said they would not. DB said she was going to go to another room and walked out of the bedroom. She said that she expected JH to follow her but when she got into the lounge room, she realised JH was not with her, but AEM Jnr was. DB said she was going to sleep on the couch, but AEM Jnr said he would take her to another bedroom in the house (the second bedroom). He did so and left her alone there but locked the bedroom door.

Events in Respect of JH

9 JH remained in the first bedroom. AEM Snr continued to touch her. She continued to protest, was crying and asked to be left alone. KEM and MM then came into the room. JH pleaded for them to help her. It seems that the three men went outside the room and MM called JH out. When she went out AEM Snr pulled a knife. When JH saw the knife she started to shake.

10 MM took JH back into the bedroom and locked the door, leaving the others outside. He said “[l]ook we’re gonna have sex”. JH pleaded with him not to and told MM that she was a virgin and was menstruating. MM said “[t]hey’re not gonna let you go unless you have sex with me”. She asked if he could “pretend” but he said, “[n]o, I’m not lying to my friends”.

11 MM pushed JH onto the bed and pulled her clothes off. He took his clothes off and put a condom on. JH, who was crying and covering her face with her hands, continued to plead for him not to do anything. MM told her to “shut up”. He then forcibly had penile vaginal intercourse with her. When he had finished, he got off her and walked out of the room, still naked, wearing the condom. JH said the assault was “painful” and “hurt” her. This offence is count 2 on the indictment for MM.

12 Almost immediately, KEM entered the room naked wearing a condom over his erect penis. He said to JH “[w]e’re not going to have sex, we’re just going to do oral”. JH pleaded with him but he grabbed her face and forced his penis into her mouth. This constituted the first offence on KEM’s Form 1.

13 After KEM had finished he said, “I’ve changed my mind, we are”. JH attempted to kick him off but KEM became violent. He pinned her arms up above her head and forced his penis into her vagina and had intercourse with her. KEM then removed the condom and forced his penis into her mouth, forcing her to perform fellatio again. Again JH described the intercourse as hurting her and as being painful. This act of sexual intercourse is count 1 on the indictment for KEM and the forced act of fellatio count 2 on the indictment.

14 At about this time the other respondents began banging on the door yelling out “[l]et us in, hurry up”. KEM opened the door for them and AEM Snr told JH to have a shower. He took her to the bathroom and left her. JH waited for a time before removing her clothes and she got into the shower, crouching down on the floor crying. AEM Snr kept coming in looking at her. He then said; “I’m coming to join you”. He got into the shower with her and forced his penis into her mouth, holding her tightly by the neck and forcing her to perform fellatio. While moving his penis in and out of her mouth he said “[o]h baby, that’s good”. This conduct was the subject of the offence on AEM Snr’s Form 1.

15 AEM Snr then immediately tried to get JH to sit on the bath ledge so that he could have intercourse with her. When he couldn’t manage this he forced her to lie down on a towel on the bathroom floor and forcibly had penile vaginal intercourse with her. He had put a condom on. After he finished he removed the condom and ejaculated on JH’s stomach. AEM Snr got up and left the bathroom and JH tried to hold the sperm so that it did not run towards her vagina. She jumped into the shower to wash it off. This occasion of sexual intercourse was count 2 on the indictment for AEM Snr.

16 While she was still in the shower KEM came into the bathroom and got into the shower with her. He made JH massage his shoulders saying “[y]ou’re good at that”. He then forced her to her knees, held her by the back of her head and forced his penis into her mouth, forcing her to perform fellatio. He then pulled her up roughly causing her to scrape her back on the tap. This act of fellatio is offence 2 on KEM’s Form 1.

17 MM entered the bathroom and he and KEM simultaneously forced their penises into JH’s mouth whilst she was on her knees in the bath, saying to her “lick it” forcing her to perform fellatio on them at the same time. MM was berating her saying “[y]ou’re a sick bitch, … enjoying this, see I told you, you would have fun”. These acts are offences 2 and 3 on the Form 1 for MM and KEM respectively.

18 MM then made JH bend over and straddle the bath while he forcibly had penile vaginal intercourse from behind her. KEM, who was seated on the edge of the bath, forced his penis into JH’s mouth so that she was made to perform fellatio on him while MM was having intercourse with her. The act of sexual intercourse is offence 1 on MM’s Form 1. The act of fellatio is offence 4 on KEM’s Form 1.

19 Finally they allowed JH to get dressed and brought her into the lounge room. MM said, “[t]his ones a sick bitch, she won’t tell anyone”. He then said to JH, “[i]f you tell anyone we will kill you. We know where you live. You’re not going anywhere until your friend fucks us.”

20 JH was menstruating at the time of the multiple assaults. As a result of the repeated offences of forcible penile vaginal intercourse, the tampon that she had inserted prior to the offences was forced up into her cervix and had to be removed by a doctor.

Events in Respect of DB

21 From the time that DB and JH first separated, they were kept apart by the offenders while the sexual assaults took place until sometime after 4.30am. When DB was first locked in the second bedroom, she looked around for a means of escape. She tried to open the window but it was locked. She could hear AEM Jnr speaking to other males outside the room. AEM Jnr came back into the room and she asked could she go to the toilet. AEM Jnr took her to the bathroom and “stood guard” outside. Some of the others began banging on the door while she was inside. AEM Jnr then took her back to the second bedroom.

22 DB asked AEM Jnr if she could leave, to which he replied, “[y]ou kind of can’t”. He then lifted a curtain to reveal an unidentified male person outside the premises. DB said she was “really scared” and she looked around the room for a weapon in case anyone else came into the room. She then lay down. AEM Jnr came and lay next to her. AEM Jnr did not at any stage touch her. She asked him what the others were doing with JH, to which he replied, “[s]he’s just having fun”.

23 DB slept for a while and then woke to hear an angry conversation between AEM Jnr and the other males through the bedroom door. DB asked AEM Jnr what was happening and he said that he “had to open the door”. DB was scared. She got up as she did not want to be seen in the bed as she “did not want them to get any ideas”. She started putting her shoes on and walked to the door. AEM Snr was standing there with a towel around his waist. She could also hear both JH’s and male voices coming from the bathroom. She heard JH asking for a towel. She said JH sounded “scared and upset”.

24 AEM Jnr took DB back to the first bedroom and DB noticed that the bed was messed up. At this point the offenders had finished the series of sexual assaults on JH and had her in the lounge room. KEM “minded” her there.

25 AEM Snr and MM followed DB and AEM Jnr into the bedroom. There were a series of exchanges in which AEM Snr and MM demanded that DB engage in sexual conduct with them. She refused. MM said “[y]ou’re making me angry, you have to sleep with one of us if you want to go”. He again impatiently demanded that DB “fuck” him. AEM Snr cut in, saying “[l]ook she does not want to sleep with you get over it”. He then picked up a flick knife from the dresser and said she would have to “… fuck one of us before you go, otherwise you and your friend will never leave”.

26 AEM Jnr, who was out of view of the other two, gestured to her to pick him. She grabbed his hand and said “I’ll pick him”. AEM Snr reacted to this by saying he would return in fifteen minutes for his turn.

27 DB was teary and shaking uncontrollably. She told AEM Jnr she was not going to sleep with him. AEM Jnr reassured her that everything would be okay. He went outside to speak to the others. AEM Jnr returned and told her that he had lied to them and told them (falsely) that she was menstruating. He then took her back to the second bedroom and locked the door. He had the knife with him but told her it was “OK now they don’t have the knife”. DB and AEM Jnr both lay down on the bed and DB drifted off to sleep for a short time. An alarm in the room woke her. It was 4.30am. MM then entered the room and AEM Jnr left saying “[b]e strong and say no.”

28 MM picked up the flick knife and opened it. He said “[l]ook, I know you don’t have your periods, your friend told me. So you are both not leaving here until I sleep with you or I will take your friend home and come back for you and dump you on the side of the road”. She refused. He got up and yelled out JH’s name, playing with the knife, and then said to DB “[d]o you know what I am going to do to her, you can take her home but she might be too much to carry”. DB started screaming and crying, but MM gagged her mouth with his hand. He then held a knife to her throat and told her to take her jeans off, which she did. He pushed her onto the bed and took off his clothes. DB kept crying out: “no, no, no”.

29 MM left the room, and DB started to get dressed, but MM returned wearing a condom, forcing her back onto the bed and made her take her clothes off. He held the knife on her chest and then brushed it past her face before putting it on the windowsill. MM then forcibly had penile vaginal intercourse with DB, continually pushing her legs apart her or telling her to keep them apart. DB pulled the blankets up over her eyes so she couldn’t see what was happening to her. At one stage he told her if it hurt he would get off her, but when she did complain he ignored her pleas. When he had finished he told her to get dressed. She asked if she could go home. He said, “[y]our friend is going home but I do not know about you”. This occasion of sexual intercourse was count 1 on the indictment for MM.

30 MM returned to the lounge room after the assault saying “she’s a tight bitch”. AEM Snr and AEM Jnr then entered the bedroom. AEM Snr asked “did he rape you” and she said “yes”. He said “that’s no way to treat a lady”. He told AEM Jnr to leave and go and speak to MM.

31 DB tried to tell AEM Snr that she was leaving. He responded “I would have let you but now you have slept with him you have to sleep with me”. She tried to leave the room but the door was locked. AEM Snr came up behind her and held a knife to her throat. He demanded that she have sex with him and when she refused he said, “I know how I can make you do it, I’ll do what the other guy said and kill [JH]”. AEM Snr started to become quite agitated, shaking his fists and saying “[you’re] making me crazy, you’re making me crazy”. He then raised his hand as if to hit her. DB “was getting really scared and started crying”. AEM Snr berated her and was pressing himself against her. DB then tried to engage him in conversation to “stall him”. She asked him why he was doing this. He replied “I have plenty of girls that like me all girls love me … This is enough talk”.

32 AEM Snr then pushed DB onto the bed, held the knife to her throat and told her to remove her clothes. She removed her jeans but asked if she could keep her shirt on. He told her “[n]o I’m naked so you have to be naked too”. He held the knife across her chest near her chin while he tried to put a condom on his erect penis. He only managed to get the condom half on. He ordered DB to spread her legs, but she refused. He tapped the knife against her chest, saying “[I]f I have to tap it again it will be harder and it will go straight through you, don’t worry this will only take five minutes”. He forced her legs apart, causing her considerable pain, and attempted to force his penis into her vagina but he could not. He forced her legs apart even further and eventually forced his penis into her vagina causing her to scream with pain. DB pulled the doona up over her face so she did not have to see AEM Snr’s face. She felt she was going to vomit. She told him to get off her. DB could feel the condom coming off. AEM Snr would not stop and had intercourse with her until ejaculation. He then left the room. This offence is count 1 on the indictment of AEM Snr.

33 AEM Jnr then entered the bedroom and said to DB “[t]his is your fault, you could have said no”. He left the room and JH came in. DB was initially upset and angry with JH because, during the course of the attacks, the offenders had said that JH had said things about her that were not true. JH responded “[DB] I was raped”. DB told her that she had also been raped. She was crying at which point JH said “[d]on’t cry, or they will kill us”.

Other Events

34 During the course of the various attacks on DB, JH, who had been taken to the lounge, room could hear her screaming. After MM’s assault on DB he returned to the lounge room and went through JH’s wallet and removed her bank keycards. He said “[t]ell me the pin, if it is wrong I will come back and kill you, if it is right, I won’t take any money”. She complied. After she had given him the number MM left with one of the others, returning a short time later with food and drink. He gave her back the card, saying that he had not stolen any money. She subsequently discovered that they had stolen $200.

35 At about 5.17am, over four hours after the girls were first picked up they were then told that they would be allowed to leave and were told to get in the car.

36 The girls were driven to a service station by KEM. DB was told to hand over JH’s mobile phone but she refused. KEM struck her across the face with his hand and grabbed the phone. JH was ordered to go into the service station. DB was also trying to get out of the car when KEM drove away at high speed, the passenger door still open and DB still having her legs hanging outside the car. After some distance the car slowed slightly and DB was pushed from the car.

37 The victims immediately complained at the service station and the police were called.

38 Later that day the victims identified the house where the offences occurred. A search warrant was executed and a number of knives and condoms were found. The respondents were arrested at the house. DNA was recovered from the side of a used condom. KEM had the same DNA profile as the major DNA component of the mixture. Partial DNA profiles recovered from a further two of the used condoms were consistent with DNA originating from MM. The respondents refused to participate in an identification parade but were nevertheless positively identified by the victims.

39 AEM Snr and MM were both interviewed by ERISP and exercised their right to silence. KEM was interviewed by ERISP and denied that he had committed the offences. He claimed that he had been at his girlfriend’s house all night. He would not provide her last name because he said she was a “decent girl” and he did not want her contacted about the matter.

40 Each of the respondents pleaded guilty a short time after the final form of the indictments was framed. The Crown conceded that the pleas of guilty were made at the first available opportunity.

Sentences Imposed by the Sentencing Judge

AEM Snr

41 The respondent AEM Snr, who was 19 years and 5 months of age at the time of commission of the offences, was sentenced on each count in the indictment to a term of imprisonment of six years, both sentences to date from 7 September 2000 and to expire on 6 September 2006. Her Honour fixed a non-parole period in each case of four years, to date from 7 September 2000 and to expire on 6 September 2004. Her Honour stated that in passing sentence on the second count on the indictment, she had taken into account the offence on the Form 1.

KEM

42 KEM was 16 years and 10 months of age at the time of the commission of the offences.

43 KEM was sentenced on each of the offences of aggravated sexual assault to a term of imprisonment of five years and seven months, both sentences to commence on 7 September 2000 and to expire on 6 April 2006. Her Honour fixed a non parole period in respect of each sentence of three years and six months to date from 7 September 2000 and to expire on 6 March 2004. Her Honour stated that in passing sentence on the first count on the indictment, she had taken into account the offence on the Form 1. Her Honour directed that the whole sentence be served in a Juvenile Justice Centre and that KEM be subject to the supervision of the Juvenile Justice Department during the parole period: s 19 of the Children (Criminal Proceedings) Act 1987 (NSW).

MM

44 MM was almost 16 years and 3 months old at the time of commission of the offences.

45 MM was sentenced on count 1 to a term of imprisonment of five years and six months to commence on 7 September 2000 and to expire on 6 March 2006. Her Honour fixed a non parole period of four years to commence on 7 September 2000 and to expire on 6 September 2004.

46 On count 2 MM was sentenced to a term of imprisonment for six years, to date from 7 September 2000 and to expire on 6 September 2006. Her Honour fixed a non parole period of 4 years to commence on 7 September 2000 and to expire on 6 September 2004. Count 2 was the principal offence for the purpose of MM’s Form 1.

47 Her Honour made a direction under s 19 of the Children (Criminal Proceedings) Act in the same terms as made in KEM’s case.

Issues on the Appeal

48 The Crown contends that the sentencing judge erred in the following respects in the sentences she imposed:

(i) she misapplied the principle of totality;

(ii) she failed to adequately take into account the very serious offences on the Form 1 in respect of each respondent;

(iii) she wrongly found special circumstances and reduced the non-parole period below the statutory ratio;

(iv) she imposed sentences which were manifestly inadequate.

Trial Judge’s Remarks on Sentence

49 Before dealing with the issues raised on the appeal it is convenient to first consider the approach taken by the sentencing judge in her remarks on sentence. In this regard, it is to be noted that AEM Snr and KEM were sentenced at the same time. MM was sentenced separately at a later date. Her Honour adopted the same approach to MM’s sentence as she had to KEM, both being juveniles at the date of the commission of the offences.

50 Her Honour described the circumstances giving rise to the offences as having “all the hallmarks of an opportunistic encounter between a number of adolescent males, who had gone for a drive because they were bored … and two adolescent females, who found themselves stranded at night without transport home”.

51 Her Honour considered that there was little to distinguish the objective criminality of the offenders AEM Snr, KEM and MM. She described them as each having “indulged in a gross display of sexual misconduct, adopting a pack mentality whereby they exploited the victims’ fear, vulnerability and isolation from each other”. She added, “one can only guess at the victims’ humiliation in being passed from one offender to the next, in circumstances which suggest that these young men placed their reputation for sexual conquest above the standards of ordinary human decency”.

52 Her Honour specifically stated that no responsibility or blame lay with the victims.

53 Her Honour noted that, in her Victim Impact Statement, DB had described her terror, shame and the damage to her notion of self-worth and to her family relationships as a result of the assaults. Her Honour observed that the impact of the offender’s behaviour upon the victims was relevant in the sentencing process subject always to the maintenance of objectivity: see R v RKB (unreported, New South Wales Court of Criminal Appeal, 30 June 1992).

54 Her Honour specifically noted that to the extent the Victim Impact Statement went beyond the agreed statement of facts she disregarded those aspects of the Statement.

55 Her Honour correctly observed that the sentences must reflect the objective gravity of the offences and the totality of the criminality represented by them. Whilst not considering that the offences fell within the worst category of offence, she found that the objective features of the offences justified the Crown’s submission that the offences were at the upper end of the scale of severity. She referred to R v Rushby [1999] NSWCCA 104, R v Lewis (unreported, New South Wales Court of Criminal Appeal, 14 December 1993) and R v Bus and AS (unreported, New South Wales Court of Criminal Appeal, 3 November 1995), as providing a guide to the range of sentence usually imposed for offences of comparable severity.

56 Her Honour referred to AEM Snr’s youth as a relevant factor in his sentencing. In relation to KEM and MM, both were juveniles at the time of the commission of the offences. However, as the offences were “serious indictable offences” within s 17 of the Children (Criminal Proceedings) Act, each was required to be sentenced according to law, that is, according to the principles ordinarily applied by the courts to adult offenders: see R v WKR (1993) 32 NSWLR 447 at 449; R v Bus and AS; rather than under the less harsh provisions of Div 4 of Pt 3 of the Children (Criminal Proceedings) Act.

57 However, the provisions of that Act continued to be relevant in two respects. First, the Court was required on sentence to have regard to the provisions of s 6 of the Act which provide:

“A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles:

(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d) that it is desirable, wherever possible, to allow a child to reside in his or her home,

(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.”

58 Her Honour referred to s 6 in sentencing KEM and noted, in respect of MM that the same principles in sentencing a juvenile as applied in KEM’s case applied to him.

59 Secondly, s 19 (in the form it was at the time of sentence) provided that the court may, in respect of a person under 21, make an order directing that the whole or any part of the term be served in a detention centre. As we have indicated, her Honour made an order under s 19 in respect of both KEM and MM.

60 Her Honour accepted that the pleas of guilty by each offender were entered at the first available opportunity to the indictments being framed in the form in which they came before her. She considered that the utilitarian value of the pleas of guilty was very high and applied a discount of 20% in that regard. This was not contested on the appeals.

61 Her Honour also considered that the sexual assaults were committed in the course of one extended episode and for that reason ordered that the sentences imposed for the two counts on the indictments filed in respect of AEM Snr and KEM be served concurrently. In MM’s case, her Honour partially accumulated the sentence because the offences had been committed on both of the victims. However, the effect of the sentences imposed on MM was that the non-parole period specified for each offence was the same length and commenced on the same date.

62 The question which now arises for this Court’s consideration is whether in approaching the sentencing of the respondents in the manner which we have outlined and in imposing the sentences she did, her Honour erred and if so, whether this Court should re-sentence the respondents.

Proper Approach to Sentencing

Pearce v The Queen

63 It is well recognised that sentencing does not involve precise mathematical formulae nor admit of a single correct answer: see R v Oliver (1982) 7 A Crim R 174; Pearce v The Queen (1998) 194 CLR 610. There are, however, established principles which must be applied. As McHugh, Hayne and Callinan JJ said in Pearce at 624:

“Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.”

64 In this case each respondent was convicted of two offences. In Pearce the proper approach to sentencing in such circumstances was described by McHugh, Hayne and Callinan JJ at 624:

and then

(emphasis added)

R v Bradley

R v Visconti

R v Clarke

65 It is plain, from a review of her Honour’s sentencing remarks, that she failed to apply this fundamental principle. In her approach to the sentencing of KEM (which was the same appropriately adapted in respect of each of the offenders) she stated:

“The sentences to be imposed in respect of the two offences in the indictment must … reflect the totality of … criminality, that is, including the offences on the Form One.”

66 Her Honour in a rolled up fashion repeated some detail of the offences. Her Honour’s next comment (again referring to KEM) reveals that her focus remained on the principle of totality:

“[s]uch criminality is appalling in one so young, especially given that he comes before the Court with no prior convictions at all”.

67 At no point in her remarks on sentence, however, did her Honour consider the appropriate sentence to be imposed in respect of each offence. In the Court’s opinion, her Honour’s approach reveals the very error to which the High Court averted in Pearce. Her Honour was required to consider the sentences individually and then apply the principles of totality, including as integral to that process, considering whether the sentences should be served concurrently or whether they should be accumulated in whole or in part. Her Honour failed to follow this process.

68 As will become apparent, we consider that this error also infected other parts of the sentencing process and in particular, that part of the sentencing which required her Honour to take the Form 1 sentences into account.

Principle of Totality and the Form 1 Offences

Totality

69 We have referred above to her Honour’s focus on the principle of totality.

70 The principle of totality can be simply stated. It requires that the effective sentence imposed upon an offender represent a proper period of incarceration for the total criminality involved. In R v Kalache (2000) 111 A Crim R 152, Sully J at 184 quoted from Thomas, Principles of Sentencing, 2nd Ed 1979 at 56-57:

“… [the Court] must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.”

Mill v The Queen

71 The Crown submitted that notwithstanding her Honour’s remarks, she misapplied the principle in that she failed to adequately appreciate the overall criminality involved in the offences. In particular, it was said that her Honour failed to give adequate weight to the aggravating features of the offences. In this regard, the Crown submitted that there was not only the aggravating feature of the offences being committed in the company of the other co-offenders, being the matter of aggravation particularised in the indictments, there were also the following aggravating features:

(i) the use of a knife to force each complainant separately to stop resisting sexual assaults;

(ii) other threats, including threats to kill;

(iii) two episodes of simultaneous sexual assaults against the one complainant with more than one respondent;

(iv) the awareness that the complainant had already been sexually assaulted by another respondent;

(v) the awareness that one complainant was menstruating at the time of the offences;

72 The Crown submitted that taking into account these features, and the circumstances generally of the offences, they were properly characterised as “gang” or “pack” rapes.

73 The respondents eschewed such categorisation, submitting that such references were imprecise, were not to be found in the applicable legislation and did nothing to elucidate the nature of the respondents’ criminality. Senior counsel for AEM Snr also pointed out that “[t]he charges to which [each] respondent pleaded guilty were based upon his acts alone, and he did not stand to be sentenced for involvement in the acts of others by virtue of the principles of joint criminal enterprise or common purpose”.

74 All that is true enough and there is force in the submission that labels such as “gang rape” do not necessarily elucidate the nature of the criminality involved, nor the extent of the criminality of each offender. But, whatever the description is applied to these offences, the respondents cannot escape the uncontested facts which have been set out in detail above. Those facts lead inevitably to the conclusion that the young female victims were forcibly detained by four youths and subjected to an horrific, uninvited, unprovoked and sustained series of sexual assaults of a most degrading kind by three of them. In addition to being forcibly detained inside the premises, another male was outside the premises keeping guard to block escape, the victims were kept separate for a lengthy period of time, physical violence was inflicted on them and they were subjected to numerous death threats. A knife was produced on a number of separate occasions by two of the offenders and brandished in a way which could only have provoked in the victims fear of death or mutilation.

75 In this Court the Crown maintained the position it had taken before her Honour, namely that the offences were not in the worst category. Had that been the case, the maximum penalty, that is, 20 years imprisonment, would have been called for: R v Holder and Johnston [1983] 3 NSWLR 245 at 271 per Priestley JA. It was submitted, however, that the objective gravity of these offences brought them very close to the worst category. Her Honour appears to have accepted that categorisation, considering the Crown’s submission to that effect was justified. Having done so, and indeed having referred to the various aggravating features upon which the Crown now relies as demonstrating error, her Honour imposed the sentences to which we have referred. None of the sentences exceeded a term of imprisonment of 6 years. The longest non parole period was 4 years.

76 With respect to her Honour, sentences of that order wholly failed to address the objective seriousness of the offences and fell far short of what was necessary given her Honour’s apparent acceptance that these cases were close to the worst class of case. It must follow, in our opinion, that her Honour failed to properly apply the principle of totality.

Failure to Have Proper Regard to the Form 1 Offences

77 The principle of totality does not of course stand on its own. It constitutes the final overview of the objective seriousness of an offender’s criminality to which a Court has regard to ensure that it is imposing an appropriate sentence in all the circumstances. As we have already indicated, questions of concurrence or accumulation are an integral part of that process. Dealing with offences listed on a Form 1 procedure is another matter in respect of which the principle of totality is relevant. However, before that final overview is had, it is first necessary to apply the statutory requirements of s 33 of the Crimes (Sentencing Procedure) Act and the principles which apply to the Form 1 procedure.

78 Each of the respondents had offences taken into account in accordance with the procedure prescribed by s 33, which provides relevantly:

“33(2) The court may take a further offence into account in dealing with the offender for the principal offence:

(a) if the offender:

(i) admits guilt to the further offences, and

(ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and

(b) if, in all of the circumstances, the court considers it appropriate to do so.

(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.

…”

79 The principles to be applied when taking a Form 1 offence into account were stated by Hunt CJ at CL (Allen J and Loveday AJ agreeing) in R v Morgan (1993) 70 A Crim R 368 at 371-372:

[however] it is wrong in principle that there should only ever be little by way of addition to the penalty imposed upon the offence charged when another offence is taken into account pursuant to [s 33]

(emphasis added)

80 In R v Bavadra (2000) 115 A Crim R 152, Wood CJ at CL (Beazley JA and James J agreeing) said at 158:

must reflect the totality of the criminal involvement

However, unless proper weight is given to the additional offences that have been disclosed, this procedure fails its true purpose

(emphases added)

81 In R v Barton [2001] NSWCCA 63, Spigelman CJ at 64 also dealt with the sentencing approach required when s 33 was invoked:

“The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express position in subs 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.”

82 Although the authorities make it clear that in sentencing in respect of the principal offence, appropriate weight has to be given to the Form 1 offences so as to reflect the overall criminality involved, it must also be recognised, as Simpson J pointed out in Lemene (2001) 118 A Crim R 131 at 134, that an offender who adopts the Form 1 procedure “is entitled to expect that the additional penalty will be significantly less than would have been imposed had separate charges been prosecuted”. See also R v Harris [2001] NSWCCA 322 per Simpson J (Spigelman CJ and Einfeld AJ agreeing).

83 In the matters subject of the present appeals, her Honour dealt with the Form 1 offences by stating (using her remarks in respect of KEM as the example), “[t]he …offences to which [the offender] has pleaded guilty are aggravated by ... further … offences on a Form One …. The sentences to be imposed in respect of the two offences on indictment must therefore reflect the totality of this offender’s criminality, that is, including the offences on the Form 1”. Relevantly identical comments were made in respect of AEM Snr. In respect of MM, who was sentenced separately, her Honour noted that his criminality was closely aligned with that of KEM’s, save that he had requested two matters to be taken into account on a Form 1, whereas KEM had four offences taken into account. Her Honour said therefore that she adopted the same sentencing approach to MM as she had in respect of KEM (except in respect of the question of concurrence and accumulation which requires separate consideration).

84 Section 33 requires that offences which are subject of the Form 1 procedure be taken into account in respect of a particular offence on an indictment. In our opinion, her Honour failed to follow the statutory prescription. Despite some lip-service to the particular offence to which the Form 1 matters were taken into account, her remarks overall indicate that she considered the Form 1 offences in connection with both counts on the indictment. It is possible that she fell into that error because of her failure to properly apply Pearce.

85 In addition, there is nothing which indicates that her Honour applied the principles to which we have referred and in particular the requirement that the Form 1 offences be taken into account “with a view to increasing the penalty that would otherwise be appropriate for the particular offence”: per Spigelman CJ in Barton. In our opinion, the sentence imposed on each respondent for the particular offence in respect of which the Form 1 offences were taken into account was so low as to indicate that her Honour failed to apply proper principle.

86 Two other matters confirm us in the view that her Honour’s approach to this aspect of the sentencing process was erroneous. First, her Honour referred to the offences in the Form 1 as being matters of aggravation of the offences. In that context she appears to be considering the principle of totality to the exclusion of the requirement in s 33 that the Form 1 offences be taken into account in respect of the specified principal offence. Secondly, the sentences for KEM and MM are very close in range, yet KEM had four offences for aggravated sexual assault taken into account on the Form 1 whereas MM had two such offences taken into account. This lack of differentiation, in our opinion, is the result of her Honour’s erroneous approach.

Concurrent or Cumulative Sentences

87 In the present cases, her Honour ordered that the two sentences imposed on AEM Snr and KEM be served concurrently. The approach to be applied in determining whether sentences should be served concurrently or cumulatively was considered by Simpson J (Mason P agreeing) in R v Hammoud (2000) 118 A Crim R 66 at 67:

the disparate nature of the offences

(emphasis added)

88 In Pearce, McHugh, Hayne and Callinan JJ, commenting on whether the sentences in that case should have been made concurrent or have been accumulated, said at 624:

“…to make the sentences imposed on [the] two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count.”

89 Her Honour gave the following reasons for ordering concurrent sentencing:

“The sexual assaults were however committed in the course of one extended episode, so that the sentences for the two offences on the indictment should be served concurrently.”

90 With respect to her Honour, we consider that to be a wholly simplistic approach. By viewing the offences as part of a continuum within a given time frame, her Honour failed to pay any, or at least any, adequate regard to the particular circumstances of each offence. This error may have flowed from her Honour’s disregard of the principles in Pearce to which we have referred. But whatever the source of her Honour’s error, it was necessary for her to determine whether there were discrete features of the individual offences which required accumulation, at least in part. Her Honour failed to adequately undertake that task.

91 Her Honour also appears to have adopted an inconsistent approach in relation to AEM Snr and MM. Each of those respondents committed offences against each victim. That was the very matter which her Honour took into account in MM’s case in determining that partial accumulation of was warranted. However, in AEM Snr’s case she ordered the sentences be served concurrently. We consider that this inconsistency also indicates error.

Other Relevant Sentencing Principles

Deterrence, Denunciation and Protection of the Public

92 This is a case where the principles of general deterrence and institutional denunciation of the crimes involved must play an important, although proportionate role. In Radich [1954] NZLR 86, the New Zealand Court of Appeal said at 87:

“… one of the main purposes of punishment, … is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment.”

Nekuda

R v Wong; R v Leung

R v Rushby

R v Harrison

Rose

Harrison

“Except in well-defined circumstances such as youth or the mental incapacity of the offender…public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular prisoner (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed.”

93 In R v Tait (1979) 46 FLR 386, Brennan, Deane and Gallop JJ said at 399:

“…the deterrence aspect of punishment is of primary importance in cases of this kind. The sentence should demonstrate to others tempted to engage in lawlessness on a vast scale that the punishment to be imposed will be calculated to protect society from the deliberate attack made upon it.”

94 Their Honours’ remarks in Tait, although made in the context of a major drug importation, are of particular force here. It must be stressed that all members of our society, including our young people, must be free to lawfully use the streets without fear of being subjected to either physical or sexual assault. The long term effects of the trauma invariably encountered by victims of either form of attack are well documented. In this case the individual trauma experienced by one of the victims was emphasised in her Victim Impact Statement.

95 It also bears repeating as Hunt CJ at CL said in R v Hartitiainen (unreported, New South Wales Court of Criminal Appeal, 8 June 1993) at 3, that non-consensual sexual intercourse is an extreme form of violence. It is a crime which must and will be denounced by the courts by the imposition of appropriate sentences. As Lee AJ (with whom Carruthers and Sully JJ agreed) said in R v Nichols (1991) 57 A Crim R 391 at 395:

“… it needs to be remembered that … there must always be a reasonable proportion between the objective seriousness of the crime and the sentence imposed. In a serious crime, the court must show its denunciation of the crime committed. The moral outrage of the community must be taken into account.”

Interrelationship of General Deterrence and Youth of Offender

96 The relationship between these principles and the youth of an offender requires further consideration in the present cases.

97 It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation: see R v DAR (unreported, New South Wales Court of Criminal Appeal, 2 October 1997); R v Mazzilli [2001] NSWCA 117. However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society. Lee AJ commented on this in Nichols at 395:

However, there is a point at which the seriousness of the crime committed by a man of 19, even though a young man, is of such a nature, is so great, that that principle must, in the public interest, give way

(emphasis added)

98 Earlier in Pham (1991) 55 A Crim R 128 Lee CJ at CL said at 135:

“It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes …”

R v Tran

99 The sentencing judge stated, in relation to AEM Snr, that whilst he stood to be sentenced as an adult, his youth was also a factor which had to be taken into account in the sentencing exercise. In relation to KEM, her Honour said he was to be sentenced according to the terms of s 6 of the Act, the provisions of which are set out at para 57.

100 In relation to MM her Honour said:

“It is always in the community’s interest to recognise and promote, where possible, the rehabilitation of any offender when arriving at an appropriate sentence. In the case of young offenders the community’s interests in fostering his or her rehabilitation are more pronounced so as to ensure as far as possible that the immature offending youth is guided towards a law-abiding, responsible, adult life.

The precise point at which the balance between general deterrence and retribution on the one hand and rehabilitation on the other should be struck in the circumstances of this matter is the central issue.”

101 Her Honour noted that the Crown had called for greater emphasis to be placed on general deterrence and retribution “without the special emphasis upon rehabilitation that a youthful offender usually attracts”. She said she believed the thrust of her remarks in respect of AEM Snr and KEM did not “differ greatly from the thrust of this submission”. Her Honour saw no reason in sentencing MM to differ in the approach taken in respect of KEM.

102 In our opinion, the sentences imposed were so low as to lead to the conclusion that, notwithstanding her expressed view as to the approach she had taken, her Honour failed to give adequate weight to the principles of deterrence and denunciation when sentencing the respondents.

Pattern of Sentencing

103 The Crown submitted that a significant increase in the sentences imposed by the sentencing judge was called for.

104 The respondents resisted the Crown case by pointing out that, if custodial sentences were imposed of the order for which the Crown contended (of 10 to 13 years), the Court would be acting inconsistently with the clear pattern of sentences imposed for this offence where there were aggravating circumstances of similar seriousness.

105 The ascertainment of the general pattern of sentences for the offences which a Court has under consideration is an important aspect of the sentencing process. In R v Oliver, Street CJ said at 177:

“The second … consideration [in the sentencing process] is the ascertainment of the existence of the general pattern of sentencing by criminal courts for offences such as those under consideration. The task of the sentencing judge, no less than the task of an appellate court, is to pursue the ideal of evenhandedness in the matter of sentencing. Full weight is to be given to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature. That collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand.”

106 The requirement that consideration be given to the general pattern of sentencing is dictated by two fundamental aspects of the justice system. The first is the requirement that the criminal courts disperse evenhanded justice. The rationale for this requirement was stated by Jacobs J in Griffiths v R (1971) 137 CLR 293 at 327 to be:

“The deterrent to an increased volume of serious crime is not so much heavier sentences as the impression on the minds of those who are persisting in a course of crime that detection is likely and punishment will be certain. The first of these factors is not within the control of the courts; the second is. … where equal treatment (i.e. consistency in sentencing) is not the rule a potential offender is encouraged to play the odds, believing that he will be among those who escape serious sanction …”

107 The second fundamental aspect, which flows directly from the first, is to ensure that the system maintains both internal integrity and external respect. As Street CJ said in R v Visconti at 107:

“Questions concerning the determination of the proper sentence to be passed upon a man guilty of rape present particular difficulties inasmuch as the circumstances can vary markedly from case to case. … Whilst recognizing the width of the range of criminality in rape, and the consequent extent of the variation between sentences in individual cases, the orderly administration of the criminal law necessitates in rape, no less than in other crimes, the preservation of relativity in the sentences being passed.”

Peisley

R v Moon

108 The role played by the pattern of sentences does not, of course, detract from, but rather informs the discretion which a judge must exercise in the individual case. In R v Pawa [1978] 2 NZLR 190, the New Zealand Court of Appeal said at 191:

“… a sentencing Judge must always be left with a reasonable and just area of discretion within which [the judge] will be entitled to operate. But there can be no doubt that the objective always must be equal punishment so far as it may be possible. It would be wrong if there were to be marked differences between one Judge’s sentence and another’s for the same crime at the same general level of culpability.”

109 In R v Oliver Street CJ said at 177:

“There is … always a danger, as is recognised on the civil side in the assessment of general damages, of seeking to use a factual assessment in one case as a legal precedent or authority to govern the decision in another.”

110 The use of sentencing statistics is one tool which a court can use to assist it in its task of ascertaining the pattern of sentences. Senior Counsel for AEM Snr extracted the following information from the statistics prepared by the Judicial Commission of New South Wales: for all offenders dealt with for offences under s 61J (243 cases in the District Court in the period January 1994 to December 2000) only 12% of offenders received sentences of 10 years or over. Total sentences for all offenders ranged from 6 months to 20 years. The median sentence was 6 years and 60% of offenders received 6 years or less. The median non-parole period was 3 years and 80% of offenders received minimum terms or non-parole periods of 5 years or less.

111 For offenders under the age of 21 years (29 cases), total sentences ranged from 18 months to 10 years (1 case). The median total sentence was 6 years and the median minimum term or non-parole period was 3 years and 6 months. There were 14 cases of offenders who pleaded guilty, had Form 1 convictions taken into account and also had prior convictions of a different type. In 7% of those cases sentences ranged from 24 months to 9 years.

112 The respondents submitted that a review of these statistics demonstrated the sentences imposed here fell within the range of sentences usually imposed for these offences. The Crown submitted however that the Judicial Commission statistics were not of much assistance because they failed to distinguish between various forms of aggravation.

113 It must be recognised that by their very nature, statistics are a blunt tool. This is particularly so in respect of offences under s 61J: see Street CJ’s comments as to the width of the range of criminality in rape, quoted at para 107 above. Spigelman CJ made a similar comment in relation to the offence of manslaughter in R v Bloomfield (unreported, New South Wales Court of Criminal Appeal, 15 July 1998), noting, at 8, that statistics are “least likely to be useful where the circumstances of the individual instances of the offence vary greatly …”.

114 There is also an inbuilt limitation in the statistics prepared by the Judicial Commission which needs to be recognised. The Commission explains this in its Explanatory Note “Explaining the Statistics”:

“… The statistics are appearance (or person) based and only the ‘principal offence’ for each finalised matter is retained for use in JIRS. All secondary offences are excluded from the data. In most instances the offender has only one proven charge and this therefore qualifies as the ‘principal offence’. Where two or more charges are proved against a person, the charge with the most severe penalty is taken as the ‘principal offence’ …”

115 This means that sentences for offences under s 61J are excluded where the offender is also convicted of manslaughter or murder where, as invariably would be the case, the higher sentence is imposed for that offence. Likewise, sentences for offences where there has been partial or total accumulation are excluded in most cases. This is an added limitation to that in respect of which the Crown complains and reinforces the need for caution to be exercised in the use of the statistical data.

116 There is another fallacy which sometimes creeps into discussion surrounding the use of statistics in that emphasis is often placed on the median sentence imposed. It is not the Court’s function to sentence at the median range of sentences handed down over a period of time. Its function is to sentence the particular offender by the application of correct sentencing principles commencing with the gravity of the offence. As Sully J said in R v Shorten at 3 (unreported, New South Wales Court of Criminal Appeal, 10 September 1997):

“… the advent of the computer and of computerised statistics does not remove the need for sentencing Courts, primary or appellate, to look with discriminating care at the particular circumstances, objective and subjective, particular to each individual case …”

117 Often, greater guidance can be obtained from a review of comparable cases: see Spigelman CJ in Bloomfield at 7. Both the Crown and the respondents, in an attempt to support their respective positions on sentence, thus referred to a number of cases involving s 61J offences. From the respondents’ perspective, the cases relied upon indicated that her Honour’s sentences were within range and that any higher sentence imposed by this Court would, correspondingly, offend the principle that sentences, as far as possible, should be evenhanded. Reliance was placed in particular on Rushby, Bus and Singh (unreported, New South Wales Court of Criminal Appeal, 16 December 1994). It will be remembered that the sentencing judge had referred to Rushby and Bus in her remarks on sentence. In written submissions the Crown referred to Talbot (unreported, New South Wales Court of Criminal Appeal, 19 December 1997). The Crown also provided the Court with a summary of cases which, it was submitted, were relevant to this exercise.

118 Because of the importance of this point, it is necessary to consider the circumstances of those cases in a little detail.

R v Bus and AS

119 Bus had been found guilty, after a jury trial, of twice having had sexual intercourse without consent in circumstances of aggravation and indecently assaulting the victim. S (a juvenile) was found guilty of twice having, in circumstances of aggravation, intercourse without consent and having indecently assaulted the victim. The trial judge had imposed an effective sentence of imprisonment for six years, consisting of a minimum term of four years and an additional term of two years on the offender Bus. In respect of S, an effective total sentence of imprisonment of 4 years and 6 months, consisting of a minimum term of 2 years and six months and an additional term of two years was imposed.

160 As a result of the combination of the various specific errors to which we have referred and independently of them we are of the opinion that the sentences imposed by the sentencing judge are manifestly inadequate. That conclusion requires this Court to re-sentence the respondents.

Appeal in Relation to the Offender AEM Snr

161 The charges of which AEM Snr was convicted involved both victims. The details have already been considered.

162 AEM Snr’s subjective features as taken into account by the trial judge, and which remain relevant on the re-sentence, are as follows. He is the eldest of five children born to parents of Lebanese extraction. He attended local State primary and secondary schools finishing his School Certificate in 1997. His father died suddenly from a heart attack in August 1997 in AEM Snr’s presence. His father’s sudden death had an adverse affect on him. He began to abuse alcohol and cannabis. He attempted to return to school in 1998 but could not cope and left to work in the building industry and then later as a courier. He was also employed for a period as a labourer in a truck rental business owned by his cousin’s husband. He was unemployed at the time of the offences. At the time of sentencing he was engaged to a young woman in Australia with whom he had been in a relationship for about 18 months.

163 AEM Snr expressed remorse for his actions to the author of a psychological report and professed to be a changed person since his incarceration. Whilst in custody he has undertaken a number of vocational and self-development courses.

164 His criminal history commenced in 1998 and included traffic and property offences and offences of dishonesty. At the time of the commission of the current offences he was the subject of two recognisances - the first imposed in November 1998 for 2 years for driving whilst disqualified and the second in December 1999 for 1 year for possession of car-breaking implements. Counsel for AEM Snr noted that he had no previous convictions for any matters of violence.

165 It is convenient at this stage to refer to a further submission made on AEM Snr’s behalf.

166 Senior counsel for AEM Snr submitted that if this Court did conclude that the sentences were manifestly inadequate, the Court still ought not, as a matter of discretion, re-sentence him. Two affidavits were filed in support of the submission, one by AEM Snr and one by his solicitor. In his affidavit, AEM Snr gave evidence that when he first came into custody he was scared, he could not get used to gaol for the first 6 months. He had lost a significant amount of weight and had experienced chest pains due to stress. He had also experienced physical problems such as aching in his knees in winter due to the cold conditions in gaol. He contends he has been discriminated against in relation to job allocation because “of what [he] was in for”. He has done some development and self awareness courses since being in gaol and proposes to do more once this appeal is finalised. He says his life in gaol has been more stressful because of the extensive media coverage of the case. He says his attitude has “changed a lot” since being in gaol.

167 In her affidavit sworn 1 February 2002, AEM Snr’s solicitor, Mary Anne Spiers Williams, annexes certificates of courses AEM Snr has taken since being sentenced, a testimonial from his cousin, photocopies of newspaper reports relating to the sentencing of the respondent (Annexure C) and, “citation summaries of media reports” (Annexure D) which may relate to the respondents, provided by Media Monitors. That material comprised 52 pages.

168 Objection was taken by the Crown to the admission of the newspaper reports and the “citation summaries” as not relevant to the matters in issue on the appeal. Senior Crown counsel conceded that there had been considerable publicity surrounding the sentencing of these respondents. He pointed out, however, that a great deal of the material in the citation summaries did not relate to this case.

169 There can be no doubting that this case has been the subject of intense media coverage. We accept that that may have had some impact on AEM Snr in gaol. He has said so in his affidavit and the Crown did not cross-examine him. However, many of the newspaper articles and citation reports deal with matters which are outside the matters in issue on the appeal and are accordingly not relevant to this Court’s determination. As no attempt was made to narrow the material, and given the Crown’s concession, we propose to reject Annexures C and D of the affidavit.

170 Notwithstanding the matters put forward on behalf of AEM Snr, we consider that the sentences imposed on him were so manifestly inadequate, that he must be re-sentenced.

171 Her Honour stated that AEM Snr’s youth was a matter which was a factor which must be taken into account in the sentencing exercise. We have already referred to the principles to which regard must be had in such circumstances. We only add to those statements of principle the following comment. It is usually not possible to state general precepts in relation to any personal circumstance for the purposes of the criminal law. The reason for that is plain, namely that sentencing is based upon the fundamental principle of individualised judgment. However, and giving full recognition to that principle, it must be said that it will be rare that the relative youth of an adult offender will be a reason for giving less weight to general deterrence than otherwise would be the case for offences of the kind which are before the Court.

172 There was nothing in AEM Snr’s individual circumstances which would cause us to consider his youth as a factor which calls for less weight to be given to general deterrence. There was no suggestion that AEM Snr did not understand the nature of his conduct. His conduct during the course of these attacks, especially in the matter referred to in the next paragraph, shows that his youth can play no role in any way in diminishing the extent of his culpability.

173 The offence the subject of the first count was committed in circumstances where AEM Snr held a knife to DB’s throat. Before the actual commission of the offence, he had given the victim a “choice”, under a threat of herself and JH being killed, as to whether she would have sexual intercourse with him, AEM Jnr or MM. When DB “chose” AEM Jnr, AEM Snr said he would, and he did, come back for “his turn”. Such conduct was machiavellian in the extreme.

174 In the opinion of the Court, taking into account the discount for the plea of guilty and applying the principle of double jeopardy we consider that the appropriate sentence for this offence is 11 years.

175 Is this a case where the Court should vary the statutory relationship between the non-parole period and the sentence we have set? That question involves a consideration of whether there are special circumstances. The sentencing judge considered that AEM Snr’s prospects of rehabilitation appeared guarded. However, she found special circumstances existed based upon the fact that he would require supervision to effect his re-integration back into society and because this was his first custodial sentence. There was nothing specific before her Honour to support the first of these reasons, although it is a view undoubtedly borne out by experience as a sentencing judge, and we think, must go without saying, in the case of a longer period of incarceration as will be involved here. We also agree with her Honour that in this case, the fact that this is AEM Snr’s first experience of a custodial sentence is a relevant factor. There is also some indication in AEM Snr’s affidavit that he is attempting to address some of his problems. It is therefore possible that the prospects of rehabilitation are now more positive. Given all these factors, we find special circumstances and consider it appropriate to vary the non-parole period.

176 We would therefore specify a non-parole period of 7 years.

177 The offence charged in the second count did not involve any immediate threat of death or other physical harm and no weapon was involved. However, shortly before the commission of that offence, AEM Snr had pulled out a knife. He had then left whilst JH was sexually assaulted first by MM and KEM. AEM Snr then committed the sexual assault contained in the Form 1, followed by the occasion of sexual intercourse which was count 2 in the indictment. The Form 1 offence was charged in connection with the second count and AEM Snr is thus to be sentenced on that count in accordance with the principles to which we have referred.

178 In our opinion, taking into account the overall criminality of the two offences, given that one offence is on a Form 1, applying the discount for the plea of guilty and giving effect to the principle of double jeopardy, the appropriate sentence for this offence is 11 years. We find special circumstances and take that into account in determining the non-parole period, which we specify to be 7 years.

179 The question which then arises is whether it is appropriate that the sentences be served concurrently or cumulatively. The offences cannot, in our opinion, be considered to be part of the one criminal enterprise. They were committed against different victims, in separate parts of the house with some hours intervening. When these matters are taken into account and the totality of AEM Snr’s criminality in relation to the offences is considered, we are of the opinion that partial accumulation is warranted.

Sentence to be Imposed on AEM Snr

180 Accordingly we make the following orders:

(i) Sentences are set aside;

(ii) Convictions are confirmed;

(iii) On the charge of aggravated sexual assault in respect of DB (Count 1), AEM Snr is sentenced to a term of imprisonment of 11 years, to commence on 7 September 2000 and to conclude on 6 September 2011. We specify a non-parole period of 7 years to commence on 7 September 2000 so that AEM Snr is eligible for release on 6 September 2007.

(iv) On the charge of aggravated sexual assault in respect of JH (Count 2) (being the principal offence for the Form 1 offence) AEM Snr is sentenced to a term of imprisonment of 11 years, to commence on 7 September 2002 and to conclude on 6 September 2013. We specify a non-parole period of 7 years to commence on 7 September 2002 so that AEM Snr is eligible for release on 6 September 2009.

The Appeal in Relation to the Offender KEM

181 KEM (who is AEM Snr’s brother) was born in Lebanon and came to Australia on his own in 1993 to join his family. He was expelled from high school before the end of Year 10 for being disruptive in class and for excessive truanting from school. He worked in carpentry after he left school but left his job about a month or two before the offences because he developed spinal problems and was suffering from frequent back pains. At the time of the offences KEM was still grieving the death of his father approximately four years before.

182 KEM was a juvenile at the time of the commission of the offences and although he is to be sentenced at law, the Court is required, to the extent relevant, to take into account the provisions of s 6 of the Children (Criminal Proceedings) Act.

183 A background report prepared by the Department of Juvenile Justice, and which was before the sentencing judge, concluded that whilst KEM accepted some responsibility for his conduct, he minimised the seriousness of the offences, exhibited denial in relation to the details of the offences and attributed some responsibility to the victims for getting into the car. As to the last of these matters, the material before the sentencing judge indicates that even though the victims got into the car, they were initially reluctant to do so. It was noted that KEM only reluctantly participated in counselling. The report states that he was socially and emotionally immature and that he was not worried about the consequences of his behaviour until charged the following day. He admits that he was sexually aroused prior to committing the offence but says that his actions were impulsive. He did not accept that his actions were very serious, adding “I have read about really serious sexual assaults in the newspaper”. He also claimed that he did not know that his conduct was criminal, a claim peremptorily dismissed by the trial judge. Counsel faintly repeated that claim on the appeal. With respect it is untenable. It was reported that KEM had been studying for his school certificate whilst in custody and had received a number of progress certificates.

184 KEM committed the first offence in the indictment immediately after MM had sexually assaulted JH. No direct threat of violence was involved although KEM had been in the room when AEM Snr had first pulled out the knife. This offence is the principal offence for the purposes of the Form 1 procedure. Thus, the sentence which is to be imposed for this offence has to take into account the overall criminality which is involved in the four offences contained in the Form 1. The first of those counts was a form of aggravated sexual assault committed as part of the overall assault subject of the first count.

185 The second offence on the Form 1 was committed against JH in the bathroom after AEM Snr had sexually assaulted her there. The third offence was a similar sexual assault which JH was required to perform on KEM and on MM at the same time. The fourth offence was then committed by KEM whilst MM was simultaneously sexually assaulting her.

186 The humiliation and degradation involved in these offences is almost unspeakable. The overall criminality of the offence in the first indictment and the Form 1 offences is very high. In our opinion, the appropriate sentence, taking into account the plea of guilty and the principle of double jeopardy, is 12 years.

187 In setting the non-parole period, it is necessary for us to determine if there are special circumstances. The sentencing judge made a finding of special circumstances for the same reasons as applied to AEM Snr. For the reasons which we have expressed in relation to AEM Snr, we find special circumstances in KEM’s case. Accordingly, we would fix a non-parole period of 8 years.

188 The offence contained in the second count occurred as part of the overall assault charged in the first count. In respect of that offence, taking into account the plea of guilty and the principle of double jeopardy, we would impose a sentence of 10 years. Again, we would find special circumstances and fix a non parole period of 6 years.

189 The six offences of which KEM has been convicted were committed against JH. One of the four offences in the Form 1 involved an assault on JH in the bedroom and during the same period as the assaults in counts 1 and 2. The other three offences in the Form 1 involved assaults at a later point of time in the bathroom. For this reason we consider that there are discrete episodes of wrongdoing involved in the count 1 offences requiring the partial accumulation of sentences. In those circumstances, we consider that the appropriate order is that KEM be sentenced first on the second count in the indictment and that the sentence in respect of the first count be partially accumulated on the sentence imposed for the second count.

Should Any Order Be Made Under Section 19 of the Children (Criminal Proceedings) Amendment (Adult Detainees) Act?

190 The trial judge made a direction that KEM serve his sentences in a Juvenile Justice Centre in accordance with the provisions of s 19 of the Children (Criminal Proceedings) Act. KEM seeks a similar order here.

191 On 25 January 2002 the Children (Criminal Proceedings) Amendment (Adult Detainees) Act 2001 (NSW) commenced operation. That Act repealed s 19 and inserted a new s 19 which provides that a person sentenced to imprisonment in respect of a serious children’s indictable offence is not eligible to serve the sentence in a detention centre after attaining 18 years unless, relevantly, the court is satisfied there are special circumstances justifying such detention after that age: s 19(3)(a). A person is not eligible to serve a sentence in a Juvenile Justice Centre after the age of 21 years except in circumstances not relevant here: s 19(2). It is also relevant, in considering this question, to have regard to s 6 of the Children (Criminal Proceedings) Act.

192 In support of the application that this Court make a direction under s 19, material from reports prepared by officers at Kariong Juvenile Justice Centre, where KEM is presently serving his sentence, was filed.

193 That material records that initially KEM was somewhat disruptive (although not presenting a significant behaviour management problem) but that over time his application to various trade and development programs had improved. He in fact, attained his School Certificate last year and has received a number of progress certificates.

194 The Sex Offender Programme Counsellor reported that:

“[KEM’s] response to counselling to date has been adequate, while [his] motivation to counselling is external that is based on his desire to be reclassified and eventually secure parol[e]. And while he does not perceive himself as being in need of treatment, [he] appears to be willing to engage in discussion of his offending behaviour.”

195 The Coordinator of Programs and Staff Development at Kariong reports that KEM is presently under the incentive scheme at the Centre and attends Sex Offenders Counselling. However, he considers that he needs to be reclassified and transferred to another centre which would enable him to fully access group and individual counselling.

196 The question whether the Court should make an order under s 19 in respect of KEM is not an easy one. The reports from the Juvenile Justice Centre, whilst indicating a significant improvement in his behaviour, are somewhat equivocal, in that his participation in offence specific counselling appears to be motivated more by self interest than by a recognition of his wrongdoing and his need for professional help. These matters clearly indicate that he requires much more professional help to gain insight into and control over his behaviour. The question is: where can he best be provided with that assistance?

197 There was some suggestion in the evidence before the Court that AEM Snr was undertaking sex offenders counselling and that if KEM was transferred to an adult gaol, he would not be able to undertake that course immediately as there is a policy that co-offenders and/or family members could not undertake the same course at the same time. It seemed to be suggested in this regard that AEM Snr and KEM would be detained in the same institution. However, there is nothing in the material which is before the Court which indicates that he is undertaking the course in question. Therefore, the possibility of delay in KEM being able to undertake such counselling if moved to an adult gaol does not seem to present as a problem.

198 Another consideration is that KEM has, since being at Kariong, developed some commitment to advancing his education. As mentioned, with encouragement from staff, he gained his School Certificate and has begun to think about undertaking his Higher School Certificate.

199 KEM turned 18 last November. A transfer to an adult gaol will involve considerable dislocation. Given that last year saw considerable improvement in his behaviour and maturity, the Court should, to the extent that it is able, encourage that. It is far preferable, and in the end works towards the greater protection of the community, if an offender can complete a term of imprisonment with insight into the wrongdoing which placed him or her there, with increased maturity and with skills. He should be given an opportunity to further develop both personally and educationally and we consider that some further period in a Juvenile Justice Centre will better assist that process. Accordingly, we direct that KEM serve part of his sentence in a Juvenile Justice Centre until he turns 19 years of age.

200 Accordingly, we make the following orders:

(i) Sentences are set aside;

(ii) Convictions are confirmed;

(iii) On the charge of aggravated sexual assault (Count 2) KEM is sentenced to a term of imprisonment of 10 years, to commence on 7 September 2000 and to conclude on 6 September 2010. We specify a non-parole period of 6 years to commence on 7 September 2000 so that KEM is eligible for release on 6 September 2006.

(iv) On the charge of aggravated sexual assault (Count 1) (being the principal offence for the Form 1 offences) KEM is sentenced to a term of imprisonment of 12 years, to commence on 7 September 2002 and to conclude on 6 September 2014. We specify a non-parole period of 8 years to commence on 7 September 2002 so that KEM is eligible for release on 6 September 2010.

(v) KEM is to serve his sentence in a Juvenile Justice Centre until 20 November 2002 when he attains 19 years of age.

Appeal in Relation to the Offender MM

201 MM (who is the cousin of the co-offenders) is of Lebanese extraction. His father left the family home when he was thirteen years old. When he was ten years old he was struck by a car and as a result he suffers from a mild chronic pain condition and abnormality of the ankle.

202 MM left school in year eight to take up a spray-painting apprenticeship. He was employed in the two years prior to the commission of the offences. MM is undertaking year 10 studies whilst in custody and intends to pursue TAFE qualifications. He has received a number of awards for contribution to various projects which he has undertaken in the Juvenile Justice Centre.

203 Counsel for MM stated that there was no obvious or logical explanation for MM’s actions. He submitted that MM had low self esteem and that his offending began after the separation of his parents. He has a close relationship with the female members of his family. It was pointed out that the offences were committed in the company of others, most importantly an older cousin.

204 The background report from the Department of Juvenile Justice confirms these observations and reported that MM is a confused young person, who is heavily influenced by peer pressure. The report states that he regretted his behaviour and seemed to be willing to address it through appropriate intervention.

205 MM’s criminal history began at fifteen and includes offences relating to illegal use of a motor vehicle for which he received a bond of 1 year. He has no previous convictions of the kind for which he is currently being sentenced.

206 The Court is required, in dealing with MM, to have regard to the principles in s 6 of the Children (Criminal Proceedings) Act. However, for the same reasons given in relation to KEM, a full custodial sentence must be imposed. We give further consideration to the principles enunciated in subs 6(b) and (c) when dealing with the submission that the Court should make a direction under s 19 of the Children (Criminal Proceedings) Amendment (Adult Detainees) Act.

207 The offence committed first in point of time by MM was on JH and is count 2 on the indictment. It occurred after AEM Snr had pulled out a knife whilst MM and KEM were present.

208 The Form 1 offences were charged in connection with this offence. Both those offences related to the sexual assaults upon JH in the presence of KEM to which we have referred at para 185. It is not necessary to repeat the detail of these offences. We have already stated our opinion of their objective and aggravated criminality. There was nothing in the circumstances of those assaults or in MM’s personal circumstances to make any different comment in relation to MM’s criminality.

209 In our opinion, the overall criminality of the second count in the indictment in conjunction with the Form 1 offences requires, after the application of the principle of double jeopardy, and taking into account the plea of guilty, a sentence of 11 years. For the reasons expressed in respect of both AEM Snr and KEM we find special circumstances and specify a non-parole period of 8 years.

210 Count 1 in the indictment was committed on DB some time after the offences against JH. MM produced a knife and verbally threatened harm to both DB and JH. He held the knife against DB’s throat. Earlier, MM had been present when AEM Snr had threatened DB that she would be killed if she did not have sexual intercourse with one of them. MM, of course, is not responsible for AEM Snr’s conduct. However, his presence when the threat was made added to his awareness of DB’s already highly traumatised and vulnerable state.

211 In relation to Count 1 we consider that, taking into account the principle of double jeopardy and the discount for the plea of guilty, the appropriate sentence is 10 years. We would specify a non-parole period of 7 years.

212 That leaves the question whether the sentences should be served concurrently or whether there should be some accumulation. Again, for the reasons expressed in relation to AEM Snr, we consider that there should be a partial accumulation of the sentences.

Should Any Order Be Made Under Section 19 of the Children (Criminal Proceedings) Amendment (Adult Detainees) Act?

213 A report has been obtained from the Kariong Juvenile Justice Centre where MM is a resident. The report indicates varying levels of rehabilitative progress. The report states “[h]e was very resistant to counselling, constantly stating that everything was all right, when other indicators of stress suggested he was not”. However, in September 2001 MM joined the Sex Offenders Program. His response to counselling is reported to be adequate. He has also been satisfactorily involved in a number of vocational courses. Overall he is reported as committing himself to his tasks and making maximum use of the Centre’s programs and resources. His progress in this regard has to be viewed against the assessment made by the Department of Juvenile Justice, dated 8 August 2001, which was presented at the hearing on sentence. There, as already noted, MM was assessed as presenting as a confused young person who appeared to be heavily influenced by peers in his decision making.

214 During the course of our judgment, we have placed a great deal of emphasis on the high level of criminality involved in these offences, and the need for retribution and for general deterrence. Whilst giving full weight to those matters, it is important that sight is not lost of the rehabilitative process. The justice system must strive to strike an appropriate balance between these various factors. As we have indicated in relation to KEM, it is of little benefit to the community for offenders to be released back into the community at the end of their sentences, having made little, if any, progress towards their rehabilitation so as to be able to live as peaceful, law abiding and productive persons within it.

215 MM will turn 18 on 16 June this year. The evidence which is available to the Court indicates that he is a suggestible personality. The programs available to him in the Juvenile Justice Centre are, in our opinion, more likely at his present stage of development to provide him with the emotional support and physical skills he needs to maximally assist his rehabilitation. The evidence before the Court indicates that progress in that regard is being made but that more is required. We consider that it is important that he have as much assistance as possible to acquire the personal strengths necessary to function independently and not be led by his peers. For those reasons we propose to direct that after he turns 18 he serves a further two years in a Juvenile Justice Centre, that is until 16 June 2004.

216 Accordingly, we order that:

(i) Sentences set aside;

(ii) Convictions are confirmed;

(iii) On the charge of aggravated sexual assault in respect of DB (Count 1), MM is sentenced to a term of imprisonment of 10 years, to commence on 7 September 2000 and to conclude on 6 September 2010. We specify a non-parole period of 7 years to commence 7 September 2000 and to expire on 6 September 2007.

(iv) On the charge of aggravated sexual assault in respect of JH (Count 2) (being the principal offence for the Form 1 offences) MM is sentenced to a term of imprisonment of 11 years, to commence on 7 September 2002 and to conclude on 6 September 2013. We specify a non-parole period of 8 years to commence on 7 September 2002 and to expire on 6 September 2010.

Citations

R v AEM [2002] NSWCCA 58

Most Recent Citation

Cases Citing This Decision

202

Markarian v The Queen [2005] HCA 25

Thorn v Laidlaw [2005] ACTCA 49

JKL v The Queen [2011] NTCCA 7

Cases Cited

29

Statutory Material Cited

3

R v Nichols [2021] NSWDC 661

R v Oliver [2024] NSWSC 1571

R v Rushby [1999] NSWCCA 104

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CITATION:	Regina v AEM Snr; Regina v KEM; Regina v MM [2002] NSWCCA 58
FILE NUMBER(S):	CCA 60605/01; 60606/01; 60748/01
HEARING DATE(S):	1 February 2002
JUDGMENT DATE:	13 March 2002
PARTIES :	Regina AEM Snr KEM MM
JUDGMENT OF:	Beazley JA at 1; Wood CJ at CL at 1; Sully J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0096; 01/11/0106
LOWER COURT JUDICIAL OFFICER :	Latham DCJ

COUNSEL :	Crown: G E Smith AEM Snr: P S Hastings SC/R Burgess KEM: R S Toner SC MM: D G Dalton
SOLICITORS:	Crown: S E O'Connor AEM Snr: D J Humphreys KEM: Bud Cham & Associates MM: Marsdens
CATCHWORDS:	Crown Appeal - Sentence - Aggravated Sexual Assault - Pearce v The Queen - Totality - Concurrent/Cumulative Sentences - General Deterrence - Pattern of Sentencing - Double Jeopardy - Special Circumstances
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW)
CASES CITED:	R v RKB (unreported, NSWCCA, 30 June 1992) R v Rushby [1999] NSWCCA 104 R v Lewis (unreported NSWCCA, 14 December 1993) R v Bus and S (unreported NSWCCA 3 November 1995) R v WKR (1993) 32 NSWLR 447 R v Oliver (1982) 7 A Crim R 174 Pearce v The Queen (1998) 194 CLR 610 R v Bradley [1979] 2 NZLR 262 R v Visconti [1982] 2 NSWLR 104 R v Clarke [2001] NSWCCA 223 R v Kalache (2000) 111 A Crim R 152 R v Holder and Johnson [1983] 3 NSWLR 245 R v Morgan (1993) 70 A Crim R 368 R v Bavadra (2000) 115 A Crim R 152 R v Barton [2001] NSWCCA 63 R v Lemene (2001) 118 A Crim R 131 R v Hammoud (2000) 118 A Crim R 66 Radich [1954] NZLR 86 Nekuda (1988) 39 A Crim R 5 R v Wong; R v Leung (1999) 48 NSWLR 340 R v Rushby (1977) 1 NSWLR 594 R v Tait (1979) 46 FLR 386 R v Hartikainen (unreported, NSWCCA, 8 June 1993) R v Nichols (1991) 57 A Crim R 391 R v DAR (unreported NSWCCA, 2 October 1997) R v Mazzilli [2001] NSWCCA 117 Pham (1991) 55 A Crim R 128 R v Tran [1999] NSWCCA 109 Griffiths v R (1971) 137 CLR 293 Peisley (1991) 58 A Crim R 167 R v Moon (2000) 117 A Crim R 497 R v Pawa [1978] 2 NZLR 190 R v Bloomfield (unreported, NSWCCA, 15 July 1998) R v Shorten (unreported, NSWCCA, 10 September 1997) R v Singh (unreported, NSWCCA, 16 December 1994) Talbot (unreported, NSWCCA, 19 December 1997) R v Agafili (unreported, NSWCCA, 1 May 1996) R v Brennan (unreported, NSWCCA, 29 May 1995) R v Harrison (1997) 93 A Crim R 314 R v McLear (unreported, NSWCCA, 1 September 1992) R v McLawrence (unreported, NSWCCA, 28 September 1995) R v Burns (unreported, NSWCCA, 21 September 1994) R v Baker (unreported, NSWCCA, 2 August 1994) Rose (unreported, NSWCCA, 23 May 1996) Power v The Queen (1973) 131 CLR 623 R v GDR (1994) 35 NSWLR 376 R v Simpson [2001] NSWCCA 534
DECISION:	Crown appeal allowed; Respondents re-sentenced