R v AI; R v Dagdanasar

Case •

[2019] NSWDC 370

•

19 July 2019

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v AI; R v Dagdanasar [2019] NSWDC 370
Hearing dates: 12 April 2019; 19 July 2019
Date of orders: 19 July 2019
Decision date: 19 July 2019
Jurisdiction:Criminal
Before: M L Williams SC DCJ
Decision:

AI: An aggregate term of imprisonment of 26 years, with a non-parole period of 18 years: at [162].

Dagdanasar: An aggregate term of imprisonment of 24 years, with a non-parole period of 16 years: at [162].
Catchwords: SENTENCING — jury trial — guilty verdict
SENTENCING — Aggravating factors — Breach of conditional liberty — Causing victim to take drug, alcohol or intoxicating substance— In company— Substantial harm, injury, loss or damage — Victim impact statement
SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Objective seriousness — Parity — Purposes of sentencing — Multiple offences — Crushing sentence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Cahyadi v R (2007) 168 A Crim R 41
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Elias v The Queen (2013) 248 CLR 483
Ewen v R [2015] NSWCCA 117
Franklin v The Queen [2013] NSWCCA 122
Franklin v The Queen [2013] NSWCCA 122
Haines v The Queen [2012] NSWCCA 238
Ibbs v The Queen (1987) 163 CLR 447
Johnson v The Queen (2004) 78 ALJR 616
King v R [2010] NSWCCA 33
Markarian v The Queen (2005) 228 CLR 357
McDowall v R [2019] NSWCCA 29
Pearce v The Queen (1998) 194 CLR 610
Qoro v R [2008] NSWCCA 220
R v AEM [2002] NSWCCA 58
R v Gavel (2014) 239 A Crim R 469
R v Hall [2017] NSWCCA 313
R v Hemsley [2004] NSWCCA 228
R v Kilic (2016) 259 CLR 256
R v KR [2012] NSWCCA 32
R v MAK [2005] NSWCCA 369
R v MAK (2006) 167 A Crim R 159
R v MAK (2006) 167 A Crim R 159
R v MRK [2005] NSWCCA 271
R v Olbrich (1999) 199 CLR 270
R v PGM (2008) 187 A Crim R 152
R v Qutami (2001) 127 A Crim R 369
R v Russell (unrep, 21/6/96, NSWCCA)
R v Simpson (2001) NSWLR 704
R v Slack [2004] NSWCCA 128
R v Thomas [2007] NSWCCA 269
Simpson v R [2014] NSWCCA 23
Sukkar [2011] NSWCCA 140
Veen v The Queen (No 2) (1988) 164 CLR 465
Weatherall v R [2013] NSWCCA 282
Texts Cited: None
Category:Sentence
Parties:

Regina (Crown)

 

AI (Offender)

  Ruhi Dagdanasar (Offender)
Representation:

Counsel:

 

Mr D Robinson (Crown)

 

Mr G Stanton (AI – Offender)

  Mr P Hogan (Dagdanasar – Offender)
File Number(s): 2016/341707; 2016/341614;
Publication restriction: Statutory non-publication order in relation to the identity of the complainant. Non-publication order in relation to offender AI, until the conclusion of related proceedings.

Judgment

  1. On the evening of 8 November 2016 an 18-year-old female went to her year 12 school formal. She drank heavily before and after the formal, and was intoxicated. At about 3 am the next morning she was sitting in a gutter in Auburn attempting to get a taxi or Uber to take her home. She was picked up by a man in the car. He sexually assaulted her in the car. He then took her to a house in Glenwood. The two offenders were at the house. Over the next several hours they gave her drugs and alcohol, and a number of vile and degrading sexual assaults were committed on the victim by the three men. She left the house later that afternoon, and was picked up by police. The first man fled to Turkey and has not been arrested. The two offenders stayed in a number of hotels in the Sydney area over the next week, under reservations not made in their name. When they were arrested on 16 November one of them said “I wanted to build up my case before I handed myself in”. He also offered what he said was evidence of their defence at trial, namely that the attractive 18-year-old victim had consented to multiple sexual encounters with three much older Turkish men. This was based on video recordings of some of the acts taken on a mobile phone in which the victim, clearly under the influence of some intoxicating substance, and barely comprehensible, was said to indicate her consent to what was happening to her. That proposition was put briefly to the victim in evidence at the trial and she rejected it. Clearly the jury rejected it as well. The lengthy attacks on the credibility of the victim at trial largely involved peripheral matters and assertions that she had lied about previous drug taking, but there was no real challenge to her evidence about the offences.

  2. Against that brief background I turn to consider the sentence to be imposed on AI and Dagdanasar, who were both found guilty of six charges by a jury. The indictment presented at trial contained 10 counts under section 61JA of the Crimes Act 1900, each alleging that the offenders, while in the company of each other and another person, had sexual intercourse with the victim, without the consent of her and knowing that she was not consenting, and immediately before, at the time of, or immediately after the sexual intercourse recklessly inflicted actual bodily harm on her. Count 2, under section 61JA carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years. Section 61JA (2) provides that a person sentenced to imprisonment for life for an offence under this section is to serve that sentence for the term of the person’s natural life. Counts 1, 3, 8, 9 and 10, under s 61J, carry a maximum penalty of 20 years with a standard non-parole period of 10 years.

  3. In R v MRK [2005] NSWCCA 271 at [3], Spigelman CJ stated :

As indicated by the maximum penalty of life imprisonment, the offence under s 61JA is in the highest level of sexual assault offences under the Crimes Act, above the offences for which s 61J provides being sexual assault in circumstances of aggravation. This represents a recognition by the legislature of the particular heinousness which often accompanies gang rapes

  1. The maximum penalties and the standard non-parole periods are yardsticks to be used in the sentencing process and indicate the extent to which the legislature and the community regard these offences as very serious.

  2. A sentencing judge is not entitled to take facts into account in a way adverse to the offender unless the facts have been established beyond reasonable doubt but if there are circumstances to be taken into account in favour of the offender it is sufficient that they be proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27].

  3. I largely accept the formulation of the facts proposed by the Crown, consistent with the jury’s verdicts, as being established beyond reasonable doubt, subject to some matters raised by the offenders which will be dealt with below. Submissions for the offenders proposed the deletion of a significant quantity of the Crown’s summary of facts, without initially providing any reasons as to why those facts should not be seen to be relevant or to be established to the requisite standard. Subsequent submissions prepared after the matter was first listed for sentence, and adjourned at the request of the offenders so that further preparation could be undertaken, some factual matters and questions of aggravation.

  4. The victim gave evidence over five days. Her evidence as to the salient points on each count in the Crown case was in accordance with her previous statements. When cross-examining counsel showed her the videos of her engaged in sexual acts, she turned away in distress and said that she did not want to watch it. Counsel for both offenders put to the victim in cross examination a number of matters which were said to have occurred during her time at the house, and those questions could of course only have been based on instructions from the offenders. For the most part she said that she did not remember such matters, or she denied them. No evidence was called to the contrary.

  5. Counsel for AI did not put to the victim that she had lied about any relevant matter. His cross examination accepted that various sexual acts had occurred, but he suggested that the victim was consenting. She said that she was not consenting.

  6. Counsel for Dagdanasar cross-examined the victim at length on suggestions that she had engaged in drug taking on previous occasions, and that she had not been truthful about those matters. The case for Dagdanasar, as put in cross examination, was that he had not had any sexual activity with the victim until after the other two men left about 8 am, that the sex at that time was consensual, and that he had only participated in filming sexual activity involving the other two men at about 5am. The victim rejected those propositions. (T458-460).

  7. In short, the victim gave a sufficiently clear version to justify the verdicts of the jury in relation to what was undoubtedly a horrifying experience, while she was heavily under the influence of drugs and alcohol.

Facts

  1. The victim was an 18 year old, Year 12 student at the date of the offences.

  2. On Tuesday 8 November 2016, the victim attended her Year 12 formal at Curzon Hall. Later that evening, she attended the ‘after party’ at an apartment on Park Road, Auburn.

  3. Before and after the formal, the victim consumed a quantity of alcohol. There is a dispute on the evidence of several people as to whether she then was showing signs of intoxication. In the light of submissions by Mr Stanton I cannot find beyond reasonable doubt that she was observed by those people to be intoxicated.

  4. CCTV from the ‘after party’ shows the victim leaving alone at 1:33am (exhibit N, T738, T783). She was stumbling apparently due to her level of alcohol intoxication. She said that she was pretty drunk following the after party, and more drunk than she had been when she left the earlier party before the formal (T308-9).

  5. Around this time, the victim called her friend Michael Grigoriadis and asked him to pick her up. He declined to do so but he offered to send an Uber. And said in evidence,

“She couldn’t string a sentence together, like it just didn’t make any sense, like she’d go from one thing to the next and that’s why I couldn’t work out where she was. So I kept asking, ‘where do I send the Uber to’, you know what I mean, ‘it will take you home’, and it just – I couldn’t get a straight answer out of her” (T612).

  1. As a result of the victim being unable to provide her location, he did not request an Uber.

  2. The victim approached local resident Navroop Singh who walking to his car and, at 1:52am, she sent a message to Grigoradis to the effect that her “Uber driver” was meeting her (exhibit BC). While the victim has no recollection of her dealings with Mr Singh, it seems that she approached him because she mistakenly believed him to be an Uber driver.

  3. She initially asked Mr Singh to “help” her and drive her to the train station. He agreed to do so because he thought that she “didn’t look normal”. She sat in Mr Singh’s car and made a further phone call to Grigoriadis in which she asked for his address. He did not want the victim coming to his house so he repeatedly told her to go to her own home. Eventually he “hung up” on her (T614).

  4. She asked Mr Singh to drive her home however he only agreed to drive her as far as the train station. Despite being asked to “get out” of the car 2-3 times, the victim refused to do so (T484) so Mr Singh proceeded to drive around the area at “random” (T487). He also offered to drive the victim to the police station as he thought she would be “safe” there (T497).

  5. After driving around for approximately 30 minutes, she finally got out of Mr Singh’s car near Auburn station. Rather than dropping her directly at the station, he dropped her a street back as he was concerned that she may fall in front of a train:

I was scared if something happened like if she fell or something happened with the train or something happened there. (T484).”

(T.496) “When you were talking to her, you didn’t smell any alcohol on her did you?

A. No.

Q. And you wouldn’t be able to say that she was drunk, would you?

A. No, like, it doesn’t seem to be drunk.

  1. The victim’s exact movements over the next couple of hours are unknown but location data from her mobile phone indicates that she stayed near Queen Street in Auburn.

  2. At 2:57am and 3:05am, the victim called Tendai “Tin Tin” Mbereko. who said that she sounded “spaced out and intoxicated” and that she was unable to provide her location (T625). During one of the calls, Mr Mbereko heard a male “mumble” in the background (T625). At 3:08am, the victim sent a message that read, “Im still on the street.”

  3. Taking into account the evidence of the victim, Mr Grigoriadis, Mr Singh, Mr Mbereko, and Grace Khamis, as well as the incoherence of her text messages contained in exhibits C and N, there is sufficient evidence to establish that the victim’s level of intoxication at that time was substantial and that her incapacity would have been obvious to other people including the offenders when they first saw her.

Arrival of Mustafa Yucebasoglu

  1. At about 3am, the victim was sitting in the gutter in Auburn when a car driven by Mustafa Yucebasoglu pulled up in front of her.

  2. The victim recalls sitting in the gutter speaking to Yucebasoglu but she did not recall what they spoke about or why she got into his car. She did not recall getting into his car – she only recalled sitting in the gutter and then sitting in the front passenger seat (T209, T324).

Rydalmere

  1. Yucebasoglu drove to another location (T326) and had penile-vaginal intercourse with the victim in his car (T209). At 3:24am and 3:57am, his phone was bouncing off a cell tower in Rydalmere (exhibit T).

  2. The evidence suggests that the victim was sexually assaulted by Mr Yucebasoglu in Rydalmere between 3:24 and 3:57am.

  3. Yucebasolu spoke to the offender AI on the phone at 3:24am and 3:57am (exhibit T). The call at 3:57am was almost three minutes in duration (i.e. finishing at about 4:00am).

  4. The defence case was that AI and Dagdanasar were, at this time, at an address in Glenwood. Also present was AI’s friend Jaala McKendrick.

  5. At 4am, Ms McKendrick ordered a taxi to pick her up from the Glenwood address (exhibit T). The evidence suggests that, during the phone call at 3:57am, Mr Yucebasoglu advised AI that he was on the way to Glenwood with the victim - the inference being that Yucebasboglu’s phone call caused AI to instigate Ms McKendrick’s departure from the house.

18 Crestview Drive

  1. 18 Crestview Drive, Glenwood, is a two-story house in a residential area. Police enquiries revealed that there was no active lease for the house at the time of the offences however ‘Ahmed Ali’ had told the real estate agent that his friend ‘Steven Poole’ wanted to rent the house and Mr Ali subsequently provided the real estate agent with a photo of ‘Steven Poole’s’ identification. Police enquiries indicate that ‘Steven Poole’ does not exist. (Ex M)

  2. A photo of the same ‘Stephen Poole’ identification was sent from ‘Ahmed Ali’ to AI on the morning of 10 November 2016 (exhibit P).

  3. There is sufficient evidence to establish that the house had been informally leased in a false name on behalf of AI.

Victim’s arrival at the house

  1. The victim and Yucebasoglu arrived at the house between 4:00am and 4:30am. The victim did not recall entering the house but assumed she must have walked inside as she had no memory of being “dragged” (T327). Again her level of intoxication must have been obvious.

  2. When she entered the house, she saw the offenders sitting on the lounge smoking cigarettes. “For a split second” at the beginning of the night, the victim also saw a woman in the house however she has no memory of speaking to her (T.219-220, T455). The evidence suggests that this woman was Ms McKendrick. AI has a large, prominent “NO FEAR” tattoo on his neck. He was referred to during the trial by reference to that tattoo.

  3. She saw a glass pipe containing “white stuff” that the offenders proceeded to light with a small blowtorch and inhale (T218-219). When the victim enquired as to the contents of the pipe, the offenders would not give her a straight answer, at various times telling her that it was angel dust, crack, or heroin (T.223).

  4. At 4:35am, she sent a text message to Grigoriadis (exhibits C and T) that reads:

I'm at some fuck heads house whose doing crack and I really scared and idk (I don’t know) what to do.

Events in the lounge room

  1. Not long after she entered the house, one of the males left the lounge room and returned with a drink. All three males were “egging” her on to “scull” the drink so she did, because she was scared and anxious (T220). She believed the drink to be Coke with some kind of “spirit” in it because it tasted strongly of alcohol (T220).

  2. Taking into account the analysis of the her blood and urine samples (exhibit E) in combination with the evidence of her and the toxicologist Mr Farrar, there is sufficient evidence to establish that, unbeknownst to the victim, at least some of the drinks provided to the victim contained GHB. I make about finding notwithstanding the submission by Mr Stanton that there was no evidence of GHB being found at the premises. There is no other suggested source for the GHB found in her system.

  3. Yucebasoglu was seated on the lounge next to the victim. He started touching her breasts and slapping her thighs and bottom. The slaps were painful but the victim was “too drunk” to stop him. He also ripped the double-sided tape from her breasts (T221).

  4. The males continued smoking the “white stuff”. Dagdanasar held the pipe to the victim’s mouth: “They did everything for me … They lifted the pipe to my mouth and they lit it for me.” She inhaled and it tasted like “poison”. She said, “It burned my throat and my mouth, and I felt very dizzy and spaced out.” She said it wasn’t like anything she’d tasted before (T223, T227).

  5. Taking into account exhibit E as well as the evidence of the victim and Mr Farrar, there is sufficient evidence to establish that the “white stuff” in the pipe was methyl-amphetamine.

Counts 1 and 2 (T224-227)

  1. AI called the victim over to him. He was seated on the opposite lounge so she “crawled” over to him. She does not remember why she crawled but said she was feeling really “out of it” at the time (T224). The evidence shows that the victim was feeling “out of it” as a result of the alcohol she had consumed earlier in the evening in combination with the GHB and methyl-amphetamine given to her by the offenders.

  2. She was lying on her back on the lounge when AI put his penis into her vagina. She is unable to recall the duration of the intercourse. She said that she did not remember consenting then or to any of the sexual acts during the time she was at the house (T225, 277).

  3. AI then put his penis into her anus.

  4. She described herself at this time as follows:

I remember kind of just being put into positions and it was rough.

All I remember is just kind of being in one position and I remember not really being able to move. So like I wasn’t choosing what position I was in.”

“I don’t remember standing up or walking. I only remember just like laying or sitting and my head was kind of tilted to one side. I couldn’t really lift my head. I don’t remember speaking.

  1. Later she said that she was more affected by the drugs than were the males, and said that she felt spaced out and dizzy and not in control of her body (T244).

  2. All three males were present at this time (T227) and Dagdanasar commented that the victim was “drooling” and she could not really lift her head. At some stage, the pipe was again held to her mouth and she inhaled more methyl-amphetamine. All three males were saying words to the effect of, “This stuff makes you so horny. We’re so horny.”

Injuries relevant to count 2

  1. Forensic Medical Officer Dr Fernando Pisani examined the victim shortly after she left the offenders’ house. He gave evidence of at least 19 separate injuries that she sustained during the assaults, which were outlined in exhibit J. In Dr Pisani’s opinion, a number of the victim’s bruises were likely to be “inflicted” or non-accidental injuries on protected areas of the body (such as the inner thighs) that were consistent with fingertip bruising (T554). He also gave evidence of a number of genital injuries including recent, complete transection of the victim’s hymen with possible bruising (exhibit J, T567-569). Photographs of the bruising are in Exhibit K. An injury to the tongue was specifically linked to Count 7, and is not taken into account.

  1. In relation to count 2, Dr Pisani gave evidence regarding his inability to perform an anal examination as the victim exhibited a level of “significant tenderness” upon examination, which prevented complete visualisation of the area (T569). In brief, the victim’s anal injuries were too painful for the doctor to complete his examination of this area.

Count 3

  1. Sometime later, Mr Yucebasoglu put his penis in the victim’s mouth. He was thrusting and “rough”. She was unable to move her head and she was finding it difficult to breathe.(T228,237)

Exhibit B

  1. Four recordings were recovered from AI’s mobile phone. Those recordings were made between 5:14am and 5:17am. A transcript was provided that translated the Turkish language into English (exhibit F).

  2. Taxi records (exhibit T) indicate that Ms McKendrick was picked up from the house at 5:02am, i.e. the first video begins 12 minutes after Ms McKendrick’s departure from the house.

  3. The videos (exhibit B) can be summarised as follows:

  4. The first video shows the victim laying on her back on the lounge while AI has penile/vaginal intercourse with her. The males can be heard to say various things such as, “I put it into her arse”, “don’t film me”, and “do her doggie bro, turn her over.”

  5. The second video shows the victim laying on her back on the lounge while AI has penile intercourse with her. The males can be heard to say various things such as, “I’m not showing your face” and “turn her over bro.”

  6. The third video shows the victim on her knees on the lounge while AI penetrates her vagina with his penis from behind and Yucebasoglu penetrates her mouth with his penis.

  7. The fourth video shows the victim kneeling on the couch with Yucebasoglu’s penis in her mouth. She moves her head away but he puts his hands around her and moves it back again. The males can be heard to say various things such as, “take a ticket bro”, “I’m not showing your face” and “they will recognise me from my cock.”

  8. In a recorded conversation on 24th February 2017 AI said that he asked Dagdanasar to record him “fucking this girl” on his phone, without letting her know. (Exhibit S).

Actual knowledge of lack of consent

  1. There is evidence to establish beyond reasonable doubt that the offenders had actual knowledge of the victim’s lack of consent.

  2. The victim’s initial intoxication must have been obvious to the offenders from at least the moment she arrived at the house (assuming they had not already been advised by Mr Yucebasoglu) (see exhibits C and N as well as the oral evidence of the victim, Mr Grigoriadis, Ms Khamis, Mr Singh, and Mr Mbereko).

  3. The offenders further intoxicated the victim by giving her methyl-amphetamine and they did so at a time when she already had so little control over her own body that they needed to hold the pipe to her mouth and light it for her. The fact that they did not provide her with a clear answer as to the contents of the pipe and told her that they didn’t do “hard drugs” indicates that they were aware that the victim would have been unwilling to inhale the substance had she known what it was.

  4. The offenders further intoxicated the victim by putting GHB in her drink without her knowledge and they did so on a number of occasions between her arrival and approximately 4pm (i.e. over a period of almost 12 hours).

  5. The offenders’ comments in the recordings (exhibit F) are consistent with knowledge that the victim was unable to control her own body (e.g. “turn her over”).

  6. The offenders’ comments in the recordings (exhibit F) are consistent with knowledge of wrongdoing (e.g. “don’t film me” and “I’m not showing your face”).

  7. In a monitored call while in custody (exhibit S), AI comments as follows: “The girl there she doesn’t know I recorded on camera” and “Without letting her know, I told Ruhi ‘record us, record us’. He recorded it.” These comments are consistent with AI’s knowledge that the victim was unaware of her surroundings.

  8. The fact that the offences took place in a house that could not be linked to any of the offenders is consistent with knowledge of wrong doing, notwithstanding the submission by the offenders that there was other knowledge acquired by the victim as to the house and the identity of Dagdanasar via his Facebook entry.

  9. The offenders’ failure to provide their names to the victim is consistent with knowledge of wrong doing (particularly see evidence of the victim at T256 in which the offenders repeatedly told the victim different names, at T57 regarding them “freaking out” when the victim touched the wallet, and at T261 that Dagdanasar referred to AI only as “the guy with the No Fear tattoo”).

  10. The offenders’ statements to the victim that they were speaking Portuguese (T257) when they were actually speaking Turkish is consistent with knowledge of wrong doing.

  11. Taking into account all the circumstances, the only available inference is that the offenders administered methyl-amphetamine and GHB to the victim with the intention of further incapacitating her for the purpose of having sexual intercourse.

  12. The offenders’ also engaged in counter-measures in the event that the victim made a complaint in the future. For example, Dagdanasar sent the victim a Facebook friend request and, when arrested by Police, AI provided police with the victim’s date of birth and place of employment.

Jungle juice

  1. When police searched the house, they located a small bottle containing isobutyl nitrite, which is colloquially known as ‘Jungle Juice’. The evidence of Mr Farrar was that ‘Jungle Juice’ does not have an “ordinary use” however it is illicitly produced and used in relation to sexual activity as it relaxes the anal sphincter thereby facilitating the insertion of objects into the anus. As jungle juice has a very short half-life, had it been administered to the victim, it would not have been detectable in her blood and urine samples.

Events upstairs (acquittal counts 4-6)

  1. The victim was taken upstairs by Mr Yucebasoglu where she was sexually assaulted on a number of occasions. The offenders were found not guilty in relation to events upstairs.

  2. The victim came back downstairs and sat on the lounge. All three offenders were present at this time. One of the offenders provided her with a zippered jacket.

Count 8 (Dagdanasar vaginal)

  1. Dagdanasar unzipped the victim’s jacket and started touching her breasts. Yucebasoglu bit her nipple. Dagdanasar put his penis in her mouth and started thrusting. He then removed the complainant's underpants and then undressed himself. The victim was on the lounge and Dagdanasar was leaning over her. He put his penis into her vagina and had intercourse with her.

Count 7 (acquittal)

  1. At a later time, Dagdanasar had penile-oral intercourse with the victim. As he was thrusting, he caused a tear under the victim’s tongue. The victim was unable to recall whether AI and Yucebasoglu were present at this time and, in cross-examination, it was put to the victim that this event occurred after AI and Yucebasoglu had left the house.

Counts 9 and 10

  1. The victim was on the floor while AI and Yucebasoglu “took turns” at having penile-vaginal intercourse with her. She said (at 255):

I was trapped under them and they were taking it in turns having sex with me. So I remember - I remember they just kind of put me in positions and putting their penises - their penis in my vagina and, kind of, just doing whatever they wanted to me. Like, I didn't - I had - I don't - yeah, I had not voice really in what they were doing. I only remember at that time the oldest guy had his iPhone and I remember the flash being in my eyes and him filming what the other two were doing.

  1. These incidents may, as the offenders submit, be the subject of the videos exhibit F, or the videos may as the Crown submits, be consistent with Count 1, but it is unnecessary to make a finding..

  2. Alternative charges of aggravated sexual intercourse without consent pursuant to s 61J were left to the jury in the event that the jury were not satisfied that actually bodily harm had been occasioned at the relevant times. The Crown did not rely upon further alternatives should the jury have been satisfied that actual bodily harm was occasioned but that the act of intercourse had not been committed ‘in company’.

Text messages

  1. At 1:05 PM the victim started a Snapchat conversation with Grace Chamis and said:

V:    omfg dude I got raped last night

…

V:    But I’m at the guys house now

I’m so scared

V:    …

They’re scary tho

Dude how im gonna get out of here

I feel like they’re gonna make me pay with a sexual response

Some random guy house

…

V:    I was that fucked

There are 3

…

V:    I was

On drugs

And I’ve had sex

With three different guys

And they aren’t sorry

I hate them

…

C:   Didn’t use protection

And they are nearly 40

Holy fkn shit

  1. At 2:55pm, AI received a text message from a number that police could not specify. The message read: “we’re have power now.” This is consistent with the electricity being connected to the house at 2:08pm (statement of John Meira (exhibit R) and exhibit T, chronology 2). The only available inference is that this message was sent by Dagdansar who was alone (except for the victim) in the house when the power was connected.

  2. At 3:32 PM the victim sent a message to Michael Grigoriadis:

They are trying to give me more alcohol but I’m drunk enough to fall for it this time.

  1. At 5:13pm, AI received another text message from a number that police were unable to specify (exhibit T, chronology 3, item 1). The message read:

She needs to go home ASAP she wont (wants) to call someone but I stopped her for now.

  1. Again, the only available inference is that this message relates to the complainant wanting to leave the house and that it was sent by Dagdanasar.

  2. At 5:36 PM the victim sent a message to her sister:

Alicia this is something you have to keep between you and me for the time being… But last night I was raped on countless occasions in the arsehole too. I feel so disgusting and easy. They knew I was drunk so they took advantage of me: and they were also giving me Angel dust which makes you horny. I’ll tell you more about it in detail later.

  1. At 6:02 PM the victim sent a message to Lachlan Webb:

I got drugged and raped last night – today – dead serious too

  1. At 6:09 PM the victim sent a further message to Lachlan Webb:

… they were strangers that persuaded me into his car and used me for all kinds of sexual acts. And they kept on giving me Angel dust and alcohol.

  1. At 6:10 PM the victim sent a message to Lachlan Webb:

it was after formal afters and I was so so so drunk I had no idea what I was doing.

  1. At 6:14 PM the victim sent a message to her sister:

I’m in Auburn. At the fkn guys house I’m really nervous.

  1. At 6:14 PM the victim sent a message to Lachlan Webb:

they still didn’t use protection after I was pleading with them too.

  1. At 6:24 PM the victim sent a message to Lachlan Webb:

please don’t judge me I really did not want this to happen at all.

  1. At 6:45 PM the victim sent a message to Lachlan Webb;

I’m just scared they’re gonna get mad. They’re fkn MMA fighters.

  1. At 6:53 PM the victim sent a message to Lachlan Webb:

I just snuck out the front holy fuck so scared

Phone call from AI

  1. At 6:18pm, AI called Dagdanasar (exhibit T). During the call, Dagdanasar handed his phone to the victim and said words to the effect of the ‘guy with the tatt on his neck’ (AI) wanted to speak to her. AI told the victim that

I’ve got more crack and more angel dust I’ll be home at 9pm. Just promise me you’ll be mine all night (T261).

  1. The call ended. Within minutes (at 6:20pm), the victim sent a message to her sister stating, “Please come quick, he’s coming back” (exhibits C and T). She said that at this time she was “really scared” (T262).

  2. At 6:46pm, her sister replied that she was approximately five minutes away. The victim told Dagdanasar that her sister was coming to pick her up. At her request, Dagdanasar unlocked the front door for her, kissed her on the lips, and said words to the effect “You can come back anytime” and she left the house. At 6:53pm, she sent a message that read, “I just snuck out the front.”

  3. By this time, she was feeling “terrified” and she surmised the effects of what she believed to be alcohol were wearing off. She said,

I was really scared, and I was, almost like paranoid. I just wanted, I really wanted to get out of there.

  1. She didn’t feel normal. She said:

I remember being very, very shaky. I remember being, well, like, almost hunched over like a – like – just something wasn’t right. Yeah, I felt very dizzy. I felt spaced out, I felt like I couldn’t look at things clearly. Or like I couldn’t – almost like I couldn’t walk in a straight line. Like, my phone was just looking weird in my hand (T263).

  1. Dagdanasar opened the front door to see if the victim was still standing outside, which made the victim more anxious so she started walking away from the house (T264). At 6:57pm, Dagdanasar called AI (exhibit T, chronology 3).

Police attendance

  1. The victim wandered along several streets for a distance of approximately 700 metres (exhibit O). At approximately 7:25pm, she was located by Police. She was teary and shaking and told police that “I got used last night sexually” (T520) and that she had been “taken advantage of”. She said that at the time of speaking to the police the alcohol was kind of wearing off but she was still drug affected. Police located a small quantity of cannabis in her possession.

Hospital attendance

  1. At about 8:20pm, the victim arrived at Blacktown Hospital.

  2. At about 9:55pm, she provided urine and blood samples. The following substances were later identified in the samples: alcohol, methamphetamine, and 4-Hydroxybutanoic acid. There was no evidence of “angel dust”, cocaine, or heroin.

  3. At 10:15pm, she was examined by Dr Pisani in the Forensic Medical Unit.

Evidence of Mr Farrar

  1. Toxicologist John Farrar gave evidence interpreting the results of the victim’s blood and urine analysis (T118-193, summarised in the Crown closing address from T881-889).

Methylamphetamine

  1. Mr Farrar said that methylamphetamine was biphasic in nature, meaning that its ingestion created an initial sense of euphoria and indestructability, however, that was followed by ‘rebound sedation’ meaning the inability to stay awake and a level of dissociation from the environment. He said the effect of methylamphetamine is virtually immediate.

  2. The amount of methylamphetamine present in the victim’s body at the time of testing indicated that, at some stage, she had consumed a significant if not substantial quantity of that drug and that she would have still been affected by it at the time of testing.

GHB

  1. Mr Farrar said that GHB was developed as an anaesthetic and that it caused sedation and possibly anterograde amnesia. He said that its “therapeutic index” was “not very good”, meaning that there is only a small difference between the amount administered for therapeutic effect and the amount administered that can lead to ‘respiratory depression’, loss of consciousness, coma, and death. Drooling can occur as a consequence of sedation. Combining alcohol and GHB was a “dangerous combination” as the sedative effects are enhanced.

  2. Mr Farrar said that a ‘recreational’ dose of GHB is usually about 2 grams and that, at the time of testing, the victim had more than 50 mg/L in her urine although he was unable to say how much more than 50mg/L as the analysis did not test beyond that amount. He said that it was unlikely that the victim had consumed a single “massive” dose as a dose of that size would have been sufficient to cause coma. Therefore, it was more likely that the amount had been administered in several smaller doses. Mr Farrar said that studies indicate that GHB is not normally found in urine more than six hours after consumption, which means that, given that the urine sample was provided at approximately 10pm, the victim had been given GHB up to approximately 4pm.

Conclusions

  1. Mr Farrar said was that, as GHB and alcohol are both sedatives, any rebound sedation from the methyl-amphetamine would have added to the victim’s sedation. He opined that, as a result of the drugs she had consumed, the victim’s ability to perceive threats to her safety and defend herself against sexual assault were severely diminished, and that it would not have been possible for her to make judgments or rational decisions.

Steps taken to avoid apprehension

  1. Between 12 and 16 November 2016, the offenders moved between three hotels in Arncliffe, Parramatta, and Brighton le Sands. I accept that, to avoid detection by police, all hotel rooms were booked under someone else’s name.

Arrest

  1. DNA consistent with Dagdanasar was located on a number of the swabs taken from the victim’s genitals. Semen consistent with AI was located on the victim’s formal dress.

  2. On 16 November 2016, AI was arrested at the Novotel in Brighton and Dagdanasar was arrested in a nearby street. AI repeatedly said to police, “I hope you’ve done your homework.” He said “where is the third guy?” The detective said “who are you talking about”, and AI wrote the name Mustafa Yucebasoglu on a note. He said “I am not a good looking man I am a good man. I have lots of girls… She was 18 there to have fun”.

  3. AI and Dagdanasar declined to be interviewed.

  4. AI told police that there were videos in his phone depicting the alleged incident, and asserted that they showed that the victim had been consenting.

  5. The table below ( Annexure A - Table of objective seriousness (41.0 KB, doc), Annexure A - Table of objective seriousness (193 KB, pdf)) sets out the counts on the indictment, the jury’s verdict on each count, a short description of the relevant act, the competing submissions as to objective seriousness where applicable, and my findings as to objective seriousness. It can be seen that each of the not guilty verdicts on counts 4, 5 and 6 related to alleged acts committed by Mustafa Yucebasoglu in the upstairs bedroom of the house. The verdicts of guilty on the statutory alternative in relation to counts 1, 3, 8, 9 and 10 are consistent with the jury not having been satisfied that in relation to those counts there was reckless infliction of actual bodily harm at any relevant time.

  6. The objective seriousness of sexual offences depends on all the circumstances of the case. It is not confined to the nature of the act committed by an offender. While the form of intercourse can be an important factor, it is not to be regarded as the sole consideration. Also important in assessing the objective seriousness are the degree of violence, the physical hurt inflicted, the form of the forced intercourse, any circumstances of humiliation and the duration of the offence. It is also necessary to have full regard to the surrounding context and circumstances, and not look at an act of intercourse in isolation: Simpson v R [2014] NSWCCA 23 at [30]-[32] per Hoeben CJ at CL.

Criminal History

  1. AI was born on 29 October 1979. His criminal record extends over 22 pages. He was initially before the Children’s Court aged 13 on charges of armed robbery and steal motor vehicle. He had a number of further offences dealt with in the Children’s Court over subsequent years including driving, drug and dishonesty offences leading to control orders. He has had numerous matters dealt with as an adult including resisting and assaulting police, and many traffic matters, including multiple drive while disqualified offences, some leading to terms of imprisonment. After his arrest on the present matters he was sentenced to terms of imprisonment of six months for driving while disqualified offences in June and August 2016. In the exercise of my discretion I will commence his term of imprisonment on 16 February 2017.

  2. Dagdanasar was born on 1 June 1969. His criminal record extends over 11 pages, commencing with a breach of apprehended violence order in 1995 and involving assault, further contravene AVO, drug offences, traffic offences and numerous driving while disqualified offences leading to terms of imprisonment. Following sentences for drive while disqualified offences on 28 March and 4 April 2016 he was released to parole on 3 October 2016. Within a fortnight, he had breached both his residential and reporting conditions and an order was made revoking his parole on 3 November 2016, the week before the current offending. The report prepared by Community Corrections on 25 October 2016 accurately summarises the position as being that he had demonstrated little effort to comply with the parole conditions. Unfortunately he was not apprehended after the breach of parole until he had committed the current offences. From 16 November 2016 until 2 March 2017 he was serving the balance of parole. The Crown submits that the appropriate commencement date in this case is 2 March 2017, as his parole was revoked as result of the breaches of his reporting and residential conditions and not as a result of these offences. The selection of a commencement date is a matter of discretion in the circumstances, and I propose to commence the sentence on the date of his arrest namely 16 November 2016.

  1. The sentencing exercise must have regard to the terms of section 3A of the Crimes (Sentencing Procedure) Act 1999 which provides that the purposes of sentencing are to ensure that the offender is adequately punished for the offence, to prevent crime by deterring the offender and others from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his actions, to denounce the conduct of the offender and to recognise the harm done to the victim of the crime and the community.

  2. As the High Court said in Muldrock v The Queen (2011) 244 CLR 120, at [20], these purposes are overlapping and at times conflicting, and there is no need to rank them in order of priority. The fundamental principle of sentencing is that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed and the circumstances of the crime committed.

  3. Both offenders have been in custody since their arrest on 16 November 2016. It is accepted that terms of full-time imprisonment are appropriate, and it is unnecessary to consider any alternative form of punishment under section 5.

  4. Neither offender gave evidence at the trial or on the sentence proceedings. Each offender relied initially upon a report of a psychologist. The history upon which the opinions were expressed in each report has not been affirmed or tested, and is, in the absence of any corroborating or consistent material, treated with a deal of scepticism and given minimal weight in accordance with authority such as R v Qutami (2001) 127 A Crim R 369.

  5. The report for Dagdanasar prepared by Mr Watson–Munro indicates that the author has no knowledge of the facts of the case and indicates that it would be beneficial if the facts and other related material could be provided “in order to firm up on the nexus between” the clinical profile, the judgement of the offender and the matters before the court. He describes a complex developmental history. He says that as a consequence of “these matters” the offender’s pre-existing psychological problems have been severely aggravated, but he does not identify what he means by “these matters”. The history appears to be that Dagdanasar was born in Turkey in 1969 and came to Australia with his family when he was six years of age. He left school at year 9 and ultimately started a security company said to be valued at $36 million and employing 500 guards before it collapsed as a result of the demise of HIH insurance. He owned 32 homes and had other capital. He has survived on Centrelink payments since his bankruptcy in 2004. He has two sons aged 23 and 26 but has no contact with them or with his former wife. He reported a suicide attempt but no history of substance abuse. He has been medicated with Seroquel and Avanza. A depressive disorder was diagnosed. Mr Watson–Munro says

I am not suggesting that Mr Dagdanasar was not aware of the criminality but rather due to the confluence of many issues in his life and his depressed mood, his interpretation of the situation was highly subjective.

That is a meaningless assertion of little or no value. He suggests that he would benefit from cognitive behaviour therapy in addition to his medication.

  1. The sentence proceedings were adjourned to enable the offenders to obtain psychiatric reports, and to address the disputed facts issues. Dagdanasar produced a report of a psychiatrist, Dr Sidorov, prepared following a consultation on 9 May 2019. The only documents that he had available were an un-specified email of instructions, the report of Watson-Munro, and the criminal history. The history provided to the psychiatrist did not expand in any relevant way upon that recounted by the psychologist in the earlier report. There is no indication that the psychiatrist was given any information about the nature of the offending. The offender reported frustration that he was in prison for something that he did not do, and that “he would fight this to the end”, thus indicating no remorse. The psychiatrist asserts that the offender meets the diagnostic criteria for Antisocial Personality Disorder and Adjustment Disorder with Depressed Mood. It asserts that he may benefit from ongoing psychological interventions. It adds little, if anything, to the offenders subjective case.

  2. For the offender AI a report was prepared by Mr Awit, psychologist. He also had no information as to the facts of the offending. He refers to receipt of the offender’s criminal record and reports from a psychiatrist in October 2014 and a psychologist in 2012, without indicating anything about the contents of those reports. The history recounted was that the offender was born in Sydney in 1979, the eldest of three children, and had a difficult and unstable upbringing after his parents separated when he was seven years old. He left school at the end of year 7 and was in and out of juvenile justice facilities. He was attacked in the street when he was 12 years old and since that time abused illicit substances and alcohol. He has been on a disability support pension since he was 18 years old apparently as a result of a diagnosis of paranoid schizophrenia. He has had intermittent employment. He married at age 25 and the marriage lasted five years. Mr Awit diagnosed schizophrenia, Borderline Personality Disorder, Post-traumatic Stress Disorder, Major Depressive Disorder, Substance Use Disorder, Alcohol Use Disorder and summarised him as a man with significant psychological issues stemming from his unstable and unhappy childhood and adolescence. He has had intermittent psychiatric treatment and been prescribed antipsychotics and antidepressants. He requires ongoing, intense psychiatric and psychological intervention.

  3. On resumption of the sentence proceedings, AI also produced a report from Dr Sidorov, in which he was specifically asked to provide an opinion as to the effect of his incarceration on his mental conditions. The psychiatrist was not given any information as to the nature of the offences or the attitude of the offender to the offences. The history recounted in this report does not relevantly add to the earlier material relied upon by AI. It is said that he was in protective custody, has been prescribed Avanza, and was knocked out by another inmate when assaulted in June 2018. The psychiatrist asserted that he met the diagnostic criteria for Antisocial Personality Disorder and Post-Traumatic Stress Disorder together with Adjustment Disorder with Depressed Mood and Substance Use Disorder. It was likely that ongoing incarceration in a noisy and dangerous environment would exacerbate his conditions, particularly his post-traumatic stress disorder. It is suggested that he engage in ongoing therapeutic counselling with a forensic psychologist, which would mitigate his risk of reoffending.

  4. Part of the assessment of the objective seriousness of the sexual assault involves taking into account the nature of the sexual act. In Ibbs v The Queen (1987) 163 CLR 447 at 452, Mason CJ and Wilson, Brennan, Toohey and Gaudron JJ stated:

The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum, at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined …

  1. Ibbs v The Queen requires the sentencer to assess and take into account where the sexual act fits in the continuum of seriousness for a given offence. In R v PGM (2008) 187 A Crim R 152 at [26], Fullerton J summarised the position as follows:

While there is no hierarchy of sexual acts that constitute sexual intercourse for the purposes of the criminal law, it is generally accepted that some forms of sexual activity may be regarded as more serious than others (see Ibbs v The Queen (1987) 163 CLR 447). This is of course necessarily modified by the context in which the offence occurred, and other circumstances of the particular offending to which Simpson J referred in AJP at [24]–[26].

  1. The s 61J offence in R v Russell (unrep, 21/6/96, NSWCCA) involved anal intercourse. Justice Dunford said:

The nature of the offences is further aggravated, in my view, by the degrading nature of the anal intercourse, even though this offence in any circumstance is of its nature always degrading.

  1. The maximum penalty for an offence is reserved for worst cases. Past High Court authorities, such as Ibbs v The Queen (1987) 163 CLR 447 at 451–452 and Veen v The Queen (No 2) (1988) 164 CLR 465 at 478, described cases that attract the maximum penalty as cases as falling into the “worst category”. Courts should avoid using the expression “worst category”: R v Kilic (2016) 259 CLR 256 at [19]–[20]. The expression may not be understood by lay people where a court finds that an offence is serious but does not fall into the “worst category”.

  2. The better approach is for the court to clearly record whether the offence is, or is not, so grave as to warrant the imposition of the maximum penalty: R v Kilic at [20]. Both the nature of the crime and the circumstances of the criminal are considered in determining that issue: R v Kilic at [18]. It is irrelevant whether it is possible to envisage, or conceive of, a worse instance of the offence: R v Kilic at [18]. It is not the case that “a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness”: Veen v The Queen (No 2) at 478.

  3. Where the offence is not so grave as to warrant the imposition of the maximum penalty, a court is bound to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instance to the worst: The Queen v Kilic at [19]; Elias v The Queen (2013) 248 CLR 483 at [27].

  4. The ultimate submission on behalf of each offender was that “the conduct falls well below the mid-range”, a global submission presumably put in relation to each count.

  5. I accept the Crown submissions that the offending is of an exceptionally grave level. By the time she arrived at the house in Glenwood it was clearly apparent to the offenders that she was an intoxicated young woman who had been picked up from the street. They engaged in conduct which led to her becoming further and highly intoxicated while displaying intimidatory conduct with the clear intention of overbearing her will, which led to repeated sexual assaults by three middle-aged men over a number of hours. The behaviour was predatory in the extreme. In the circumstances each offence was in the upper mid-range of objective seriousness. This is a finding of the sentencing judge which was found to be appropriate in Haines v R [2012] NSWCCA 238, at [54]. It follows that I reject the submissions for the offenders that the objective seriousness of each case is below midrange. I make this finding notwithstanding the recent confirmation that to there is no obligation to “classify” the objective seriousness by reference to some scale: McDowall v R [2019] NSWCCA 29 at [33]-[37] per Adamson J.

  6. The written submissions put by the offenders, in identical terms, asserted that the Crown’s submissions did not reflect a balanced and appropriate basis for the sentencing exercise. They challenge the Crown’s ultimate preliminary submission that a sentence approaching the maximum available penalty (clarified to mean an aggregate sentence) would be appropriate.

  7. The matters relied upon by the offenders are: the limited nature and extent of the injuries sustained by the victim; the evidence of the level of intoxication of the victim, the extensive use of mobile telephone and social media applications by the victim during her time at the Glenwood house; the lies told by the victim to family members and friends about her whereabouts during her time at the Glenwood house; the period of time over which the offenders were said to be in the company of the victim; the video found on the mobile telephone of the offender AI; the conduct of the victim and her capacity to be at liberty following the conduct upon which the offenders were convicted.

  8. The submissions assert that there was a failure to identify whether the offences were committed recklessly as opposed to intentionally. That submission can be answered shortly – in relation to count 2, the verdict indicates that the jury found that actual bodily harm was recklessly inflicted. As to the alternative counts the jury’s verdicts are explicable on the basis that the jury was not satisfied, in relation to those counts, that there was an infliction of actual bodily harm, recklessly or otherwise, at the time of or immediately before or after the event.

  9. Submissions for the offenders address what is said to be the proper characterisation of the joint criminal enterprise. It may be accepted that Mustafa Yucebasoglu was the moving party. However I reject the submission that the joint criminal enterprise sprung up and was executed in spontaneous and brief temporal context, void of any detailed or careful planning and execution, and at best opportunistic. The joint criminal enterprise persisted at least from the time the victim walked into the house until the completion of the last offence. The time cannot be accurately estimated but the evidence clearly shows that it was not of a brief temporal context and involved at least two phases of criminality punctuated by events that were said to have occurred in the upstairs bedroom involving the victim and Mustafa Yucebasoglu.

  10. The facts outlined above show that the offenders knew that Mustafa Yucebasoglu was bringing an intoxicated young lady to the house, made arrangements to ensure that the female friend left the house, and then embarked upon the acts described over several hours. I accept that the offenders deliberately set about causing the victim to ingest intoxicants so that she would be incapable of forming freely given and voluntary consent to the sexual acts.

  11. Notwithstanding the further written submissions by Mr Stanton on this topic, I accept the Crown’s submissions that a number of aggravating factors under section 21A are established, namely: the offenders caused the victim to take, inhale or be affected by an intoxicating substance (having found that there was no other likely source of the GHB); the offences were committed in the home occupied by at least one of the offenders (it being unnecessary to establish any element of detention as suggested by Mr Stanton), allowing the offenders to secrete the victim away from possible rescue or intervention; the victim was vulnerable in that she was a substantially intoxicated young woman when she first encountered the offenders; the offending involved planned criminal activity, namely plying her with intoxicants and the continual sexual assaults involved ongoing planning to a limited degree; the offences were committed while each offender was conditional liberty – AI was on a section 9 bond and Dagdanasar was on parole.

  12. It is clear that the criminal history of both offenders disentitles them to leniency but as the Crown concedes they are not aggravating factors pursuant to section 21A.

  13. In Markarian v The Queen (2005) 228 CLR 357 at [30]–[31], Gleeson CJ, Gummow, Hayne and Callinan JJ said:

Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance …

It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

  1. It is common ground that an aggregate sentence should be imposed, and that there should be a degree of accumulation involved in the ultimate sentence, although the offenders submit that there should be a significant degree of concurrency. As Grove J said in R v MAK [2005] NSWCCA 369 at [68] the seriousness of criminal conduct escalates with repetition. Concurrency should not be imposed simply because of the similarity of the conduct or because it may be seen as part of one course of criminal conduct. The question to be answered is whether the sentence for one offence can encompass the criminality of all the offences: per Howie J in Cahyadi v R (2007) 168 A Crim R 41 at [56]. It is necessary to ensure that the aggregation of all sentences is a just and appropriate measure of the total criminality involved. It is also necessary when considering questions of totality, to bear in mind that an extremely long total sentence may be crushing upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of the useful life after release.

  2. General deterrence is a significant matter to be taken into account. As McLellan CJ at CL said in MAK:

It is a fundamental right of every person in a civilised society to live without fear of being assaulted, whether it be physical assault or assaults of a sexual nature. For this reason the legislature has made all forms of assault upon the person a crime imposing heavy penalties on those who do not respect that right. When, as happened in the matters under appeal, the conduct of an offender demonstrates a complete disregard for that right our community expects the courts to impose penalties which punish the offender and mark out the seriousness of the offence so that others will be deterred from acting in a similar manner.

  1. Counsel for Dagdanasar submits that the application of general deterrence here should be tempered due to long-standing mental health issues, referring to the principles outlined in R v Hemsley [2004] NSWCCA 228. The difficulty in accepting that submission is that neither Mr Watson–Munro nor Dr Sidorov assert any relevant causative effect, even if one were to accept in whole or in part the history upon which the opinion is based. The Crown refers to the well-known principles set out in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177], to support the submission that there is no nexus established between any mental condition and the commission of the offences in relation to either offender and thus no basis for a diminution of moral culpability; any mental condition in relation to either offender is not such as to make him an inappropriate vehicle for general deterrence; and there is nothing to derogate from the proposition that specific deterrence is a significant matter to take into account in relation to each offender.

  2. The offenders submit that a finding of special circumstances should be made, relying upon the mental illness and further factual findings to be made. There should be a modest reduction in the statutory ratio due to special circumstances, namely in each case it is to be expected that some extended period of supervision may assist in rehabilitation.

  3. There have been no submissions made as to any mitigating factors, and none are apparent on the evidence. There has been no evidence or submissions as to remorse, prospects of reoffending or prospects of rehabilitation.

  4. I have taken account of the decisions referred to in submissions as to sentences in other matters including R v MAK [2005] NSWCCA 369, Weatherall v R [2013] NSWCCA 282, King v R [2010] NSWCCA 33 and Qoro v R [2008] NSWCCA 220. Each involves significantly different objective and subjective circumstances to the present case.

  1. The totality principle is a well-established principle of sentencing to be applied by the court when sentencing an offender for more than one offence. It requires a judge or magistrate to determine an appropriate sentence for each offence, consider questions of cumulation or concurrence and then, when reviewing the aggregate sentence consider whether it is “just and appropriate”: Pearce v The Queen (1998) 194 CLR 610.

  2. The principle of totality requires that the effective sentence imposed on an offender represent a proper period of incarceration for the total criminality involved: R v AEM [2002] NSWCCA 58 at [69] per Beazley JA, Wood CJ at CL and Sully J.

  3. In Johnson v The Queen (2004) 78 ALJR 616 at [18] the Court said

‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”

  1. However, in R v MAK (2006) 167 A Crim R 159 at [18], the court said :

A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112].

  1. In Franklin v The Queen [2013] NSWCCA 122 Hoeben CJ at Cl said at [44]-[45]:

There is no rule that sentences for offences committed on the same day, or as part of the same criminal enterprise, should be served concurrently. A sentence should not be "concurrent simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct" (R v Jarrold (Howie J at [56]). The question to be asked is whether the criminality of the offence can be encompassed in the criminality of the other offence (Cahyadi v R). If not, the sentence should be at least partially cumulative, otherwise there is a risk that the sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the offences can be regarded as part of a single episode of criminality (Cahyadi v R at [27]).

Similar observations are appropriate in the present case. The applicant was involved with the co-offender in a variety of sexual acts upon the victim. Each act involved separate criminality of varying degrees of significance. Although part of an overall event, the sentencing judge was required to identify a sentence appropriate for each separate act.

  1. In Haines v The Queen [2012] NSWCCA 238 Belllew J said :

In support of the submission that the sentence amounted to a "crushing" one, counsel for the applicant relied upon the judgement of this court in R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 where it was observed (at 164; [17]):

“ ... an extremely long total sentence may be "crushing" upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there maybe of rehabilitation and reform.”

It is important to bear in mind that such a statement was accompanied by the following observation:

"Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint."

  1. A victim impact statement was read. The weight which the court should give to the statement is a matter for the court. In R v Thomas [2007] NSWCCA 269, Basten JA stated at [37]

“… it will often be appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established beyond reasonable doubt and the statement is restricted to subsequent effects on the victim”.

  1. I have borne in mind the principles referred to by Sperling J in R v Slack [2004] NSWCCA 128,

Whilst a sentencing hearing is not subject to the rules of evidence unless an order to that effect is made and whilst s28 also, by implication, allows the court to take a victim impact statement into account in determining the appropriate punishment by sentence, the weight to be given to such a statement is for the court to determine. In RKB (NSW CCA, 30 June 1992, unreported) it was acknowledged that a sentencing court is required to take into account the impact of criminal behaviour on the victim or victims of such behaviour but, it was said, what is required is an objective assessment of the crime’s effect.

The court is required to be satisfied of the facts in question beyond reasonable doubt. In these circumstances, substantial weight cannot be given to an account of harm in an unsworn statement, not necessarily and almost certainly not in the victim’s own words, untested by cross-examination and, in the nature of things, far from being an objective and impartial account of the effect of the offence on the victim.

  1. As the Court said in R v Gavel (2014) 239 A Crim R 469, at [106]

“…sentencing judges are entitled to proceed on the basis that serious sexual assaults can be expected to have adverse psychological consequences and that, as a result, care needs to be taken to avoid double counting with regard to the aggravating feature of substantial emotional harm.”

  1. In this case, the statement was an eloquent and insightful picture of the serious psychological consequences that the offending has had on the victim.

  2. As to parity, the Crown submission is that once the victim was in the house all participants to the joint criminal enterprise played an equal role in the offending. Mr Hogan, in supplementary submissions on parity, refers to a number of authorities including R v KR [2012] NSWCCA 32 at [16]-[22] and R v Sukkar [2011] NSWCCA 140 at [136], in support of the proposition that each particular participants level of culpability stands to be assessed by reference to his particular conduct, and that his client was the actual perpetrator of a sexual act upon the victim in only one case. The Crown submits that with each additional act sexual intercourse the brutality, seriousness, and criminality of the offending increases, and that it would be artificial to view each act of sexual intercourse in isolation from the others and attempt to perform the exercise of somehow distinguishing a level of culpability for each when the overall criminality is so intertwined with the others; Ewen v R [2015] NSWCCA 117 at [124]. That general proposition cannot be strictly applied to the facts of these offences.

  3. Here, the offenders played a different role in relation to each of the offences and that must be taken into account in setting indicative sentences and the ultimate aggregate sentence.

  4. In setting the non-parole period I must have regard to what was said in R v Hall [2017] NSWCCA 313 at [89] as to the principles to be applied, conveniently drawn from the judgment of the Chief Justice in R v Simpson (2001) NSWLR 704:

•The judgment of four justices of High Court in Power v The Queen (1973) 131 CLR 623 included that "the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention". (R v Simpson at [55])

•The non-parole period must itself appropriately reflect the criminality involved in the offence. (R v Simpson at [63])

•Considerations of general deterrence are at least equally significant to the setting of the head sentence and the non-parole period. The High Court's decision in Power v The Queen rejected a proposition that considerations of punishment and deterrence were of lesser relevance to the specification of the non-parole period. (R v Simpson at [64])

•The need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender – including the objective gravity of the offence and the need for general deterrence – operates to confine the proper range for the exercise of the discretion. (R v Simpson at [65])

•A circumstance taken into account by way of reduction of the head sentence will have the effect of also reducing the non-parole period. "Before a sentencing judge further reduces the non-parole period by reason of that circumstance, he or she must undertake a process of analysis which travels beyond that which has been undertaken in the course of determining the head sentence." (R v Simpson at [67]) To the same effect, Spigelman CJ said in R v Fidow [2004] NSWCCA 172 at [18]:

‘Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur.’

•Section 44 of the Crimes (Sentencing Procedure) Act operates as a fetter or constraint on the exercise of the sentencing discretion. (R v Simpson at [69])”

Sentence Orders

  1. The orders that I make are:

AI

  1. The offender is convicted of each offence

  2. I impose an aggregate term of imprisonment of 26 years commencing on 16 February 2017 and expiring on 15 February 2043.

  3. I impose a non-parole period of 18 years expiring on 15 February 2035.

  4. The indicative sentences are:

  1. Count 1: 12 years; with a non-parole period of 7 years.

  2. Count 2: 16 years; with a non-parole period of 11 years.

  3. Count 3: 8 years; with a non-parole period of 5 years.

  4. Count 8: 8 years; with a non-parole period of 5 years.

  5. Count 9: 13 years; with a non-parole period of 8 years.

  6. Count 10: 12 years; with a non-parole period of 7 years.

Dagdanasar

  1. The offender is convicted of each offence

  2. I impose an aggregate term of imprisonment of 24 years commencing on 16 November 2016 and expiring on 15 November 2040.

  3. I impose a non-parole period of 16 years expiring on 15 November 2032.

  4. The indicative sentences are:

  1. Count 1: 8 years; with a non-parole period of 5 years.

  2. Count 2: 12 years; with a non-parole period of 7 years.

  3. Count 3: 8 years; with a non-parole period of 5 years.

  4. Count 8: 12 years; with a non-parole period of 7 years.

  5. Count 9: 8 years; with a non-parole period of 5 years.

  6. Count 10: 8 years; with a non-parole period of 5 years.

Amendments

14 April 2020 - Insert correct Annexure A at [115].

Decision last updated: 14 April 2020

Cases Citing This Decision

0

Cases Cited

39

Statutory Material Cited

2

Regina v MRK [2005] NSWCCA 271
R v Olbrich [1999] HCA 54
R v Olbrich [1999] HCA 54