R v Bilal Skaf

[2005] NSWCCA 297

CITATION:	R v Bilal Skaf [2005] NSWCCA 297
HEARING DATE(S):	26 July 2005
JUDGMENT DATE:	16 September 2005
JUDGMENT OF:	Studdert J; Bell J; Latham J
DECISION:	(1) Leave to appeal is granted. (2) The appeal against the sentences imposed is allowed and the sentences imposed in the District Court are quashed. (3) In lieu thereof, sentences are imposed as follows: FOR THE OFFENCES COMMITTED ON 10 AUGUST 2000 - For the offences of detain for advantage (counts 1 and 2): on each count the applicant is sentenced to imprisonment for seven years to commence on 12 February 2001 and to expire on 11 February 2008. For the three offences of assault (counts 4, 11 and 13): on each count the applicant is sentenced to imprisonment for two years, again to commence on 12 February 2001 and to expire on 11 February 2003. For the accessorial offences of aggravated sexual intercourse without consent in company (counts 6, 7, 8, 9, 10 and 12): on each count the applicant is sentenced to imprisonment for fourteen years to date from 12 February 2001 and to expire on 11 February 2015 with a non parole period of ten years six months to commence on 12 February 2001 and to expire on 11 August 2011. For the offences of aggravated sexual intercourse without consent (counts 3 and 5 involving Ms A): on each count the applicant is sentenced to imprisonment for a term of fifteen years to commence on 12 February 2002 and to expire on 11 February 2017 with a non parole period of eleven years three months commencing on 12 February 2002 and expiring on 11 May 2013. For the offence of aggravated sexual intercourse without consent in company (count 14 involving Ms B): the applicant is sentenced to imprisonment for fifteen years to commence on 12 February 2004 and to expire on 11 February 2019 with a non parole period of eleven years three months commencing on 12 February 2004 and expiring on 11 May 2015. FOR THE OFFENCES COMMITTED ON 30 AUGUST 2000 - For the offence of detain for advantage (count 3): the applicant is sentenced to imprisonment for a period of seven years to commence on 12 February 2009 and to expire on 11 February 2016. For the offences of pervert the course of justice (counts 16, 17): on each count the applicant is sentenced to imprisonment for three years to commence on 12 February 2009 and to expire on 11 February 2012. For the offences of aggravated indecent assault in company and aggravated act of indecency in company (counts 4, 5): on each count the applicant is sentenced to imprisonment for two years to commence on 12 February 2011 and to expire on 11 February 2013. For the offence of aggravated sexual intercourse without consent (in company), being the act of digital penetration (count 6): the applicant is sentenced to imprisonment for a term of fifteen years commencing 12 February 2012 and expiring on 11 February 2027 with a non parole period of nine years to commence on 12 February 2012 and to expire on 11 February 2021. For the remaining act of aggravated sexual intercourse without consent, being the act of penile penetration (count 10): the applicant is sentenced to imprisonment for a term of sixteen years to commence on 12 February 2013 and to expire on 11 February 2029 with a non parole period of ten years to commence on 12 February 2013 and to expire on 11 February 2023. The first date upon which the applicant will become eligible for consideration of release on parole will therefore be 11 February 2023.

CATCHWORDS:	Criminal law - application for leave to appeal against sentences - detention of complainants for advantage - aggravated sexual intercourse without consent (in company) - accessorial offences and offences as principal in the first degree - aggravated indecent assault in company - aggravated act of indecency in company - whether offences of aggravated sexual intercourse constituted worst class of case - whether errors in findings and approach by sentencing judge - parity - whether sentences manifestly excessive.
LEGISLATION CITED:	Crimes Act, ss 61J, 61O, 90A, 319 Crimes (Sentencing Procedure) Act, s 43
CASES CITED:	Di Simoni v The Queen (1981) 147 CLR 383 Ibbs v The Queen (1987) 163 CLR 447 Lowe v The Queen (1984) 154 CLR 606 Pearce v The Queen (1994) 194 CLR 610 R v Bavadra (2000) 115 A Crim R 152 R v Boatswain (unreported, NSWCCA, 15 December 1993) R v Chami [2005] NSWCCA 299 R v Ginder (1987) 23 A Crim R 1 R v AEM & Ors [2002] NSWCCA 58 R v Roberts (unreported, NSWCCA, 8 August 1994) R v Presta [2000] NSWCCA 40 R v Thomson & Houlton [2000] NSWCCA 309 R v Way (2004) 60 NSWLR 168 R v Wheeler [2000] NSWCCA 34 Ryan v The Queen (2001) 206 CLR 267 Siganto v The Queen (1998) 194 CLR 656 Veen v The Queen (No 2) (1987) 164 CLR 465
PARTIES:	Regina v Bilal Skaf
FILE NUMBER(S):	CCA 2002/2323
COUNSEL:	R. Cogswell SC/D. Arnott (Crown) J. Stratton SC (Applicant)
SOLICITORS:	S. Kavanagh (Crown) S.E. O'Connor (Applicant)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0750; 01/11/1188
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ

2002/2323

STUDDERT J
BELL J
LATHAM J

Friday 16 September 2005

REGINA v BILAL SKAF

Judgment

1 THE COURT: The applicant, Bilal Skaf, seeks leave to appeal against sentences imposed after two trials. Between 19 November 2001 and 20 December 2001 the applicant stood trial before his Honour Judge Finnane QC and jury charged with two counts of detain for advantage, nine counts of aggravated sexual intercourse without consent (in company), and two counts of assault. On 20 December 2001 the applicant was found guilty on all counts.

2 Then, between 29 April 2002 and 7 June 2002 there was a second trial, again by judge and jury, in which the applicant stood trial charged with offences of detain for advantage, aggravated indecent assault in company, aggravated act of indecency in company, three counts of aggravated sexual intercourse without consent (in company) and two counts of perverting the course of justice. The jury disagreed in relation to one of the aggravated sexual intercourse counts but the applicant was otherwise found guilty on all the remaining counts.

3 On 15 August 2002 and 10 October 2002 the judge sentenced the applicant in respect of all the offences concerning which he had been found guilty. He was also sentenced in relation to two counts on an indictment from an unrelated trial. However, the convictions and sentences for these two counts were subsequently quashed by the Court of Criminal Appeal: see R v Skaf & Anor (2004) 60 NSWLR 86. The Court of Criminal Appeal adjusted the commencement dates of the sentences for the offences that were the subject of the second trial.

4 As a result of such adjustment, the sentences against which the applicant seeks leave to appeal were sentences as follows:

Trial 1 Counts 1 and 2 – detain for advantage: term of imprisonment for seven years to commence on 12 February 2001 and to expire on 11 February 2008;

Counts 3, 5, 6, 7, 8, 9, 10 and 12 – aggravated sexual intercourse without consent (in company): a term of imprisonment of twenty years to commence on 12 February 2001 and to expire on 11 February 2021 with a non parole period of fourteen years to expire on 11 February 2015;

Counts 4, 11 and 13 – assault: imprisonment for two years to commence on 12 February 2001 and to expire on 11 February 2003;

Count 14 – aggravated sexual intercourse without consent in company: a term of imprisonment of twenty years to commence on 12 February 2011 and to expire on 11 February 2031 with a non parole period of ten years to expire on 11 February 2021.

Trial 2 Count 3 – detain for advantage: (after adjustment by the Court of Criminal Appeal) imprisonment for seven years to commence on 12 February 2021 and to expire on 11 February 2028;

Counts 4 and 5 – aggravated indecent assault (in company), aggravated act of indecency (in company): (again after adjustment) imprisonment for two years to commence on 12 February 2021 and to expire on 11 February 2023;

Count 6 – aggravated sexual intercourse without consent (in company): (again as adjusted) term of imprisonment of twenty years to commence on 12 February 2021 and to expire on 11 February 2041 with a non parole period of seven years six months to expire on 11 August 2028;

Count 10 – aggravated sexual intercourse without consent (in company): (again as adjusted) term of imprisonment of twenty years to commence on 12 February 2027 and to expire on 11 February 2047 with a non parole period of four years to expire to 11 February 2031;

Counts 16 and 17 – pervert the course of justice: (again as adjusted) term of imprisonment of seven years to commence on 12 February 2021 and to expire on 11 February 2028.

5 The end result was that for the offences the subject of the convictions at the first trial, there were imposed sentences aggregating thirty years imprisonment, to commence on 12 February 2001, with an effective non parole period of twenty years to expire on 11 February 2021. Then, for the offences for which he was convicted at the second trial, terms of imprisonment aggregating twenty-six years were imposed commencing on 12 February 2021 and expiring on 11 February 2047. The effective non parole period was one of ten years to expire on 11 February 2031.

6 In summary then, the applicant was sentenced overall to imprisonment for forty-six years commencing on 12 February 2001 and expiring on 11 February 2047. The non parole period overall was a term of thirty years to expire on 11 February 2031.

7 The offence of detain for advantage is an offence for which s 90A of the Crimes Act provided a maximum penalty of twenty years imprisonment or, if the victim was liberated without having sustained substantial injury, fourteen years imprisonment. Aggravated sexual intercourse without consent in company is an offence for which s 61J provides a maximum penalty of twenty years imprisonment. Assault is an offence for which s 61 provides a maximum penalty of two years imprisonment. Aggravated indecent assault in company is an offence for which s 61M provides a maximum penalty of seven years imprisonment. Aggravated act of indecency (in company) is an offence for which s 61O provides a maximum penalty of three years imprisonment. Pervert the course of justice is an offence for which s 319 of the Crimes Act provides a maximum penalty of fourteen years imprisonment.

8 The first trial concerned criminal activity on 10 August 2000 and the second trial concerned criminal activity on 30 August 2000.

9 The applicant stood trial with Belal Hajeid and Mohammed Ghanem in relation to charges arising from the events of 10 August 2000. There were two victims, namely two year 12 students, and they met a group of eight males, including the applicant and Hajeid, at the Chatswood shopping centre. The girls were offered marijuana and a lift home and went with four of the males in a white van. One of those males was the applicant. The other four males followed in a red car.

10 Ultimately, all eight men and the two girls arrived at Northcote Park, Greenacre and there the two victims were forced to participate in numerous acts of oral intercourse.

11 The applicant took Ms A from the van to a metal seat where he asked her to give him “a head job”. He told her that when the other car arrived the occupants would not leave her alone until she gave them what they wanted and would probably bash her for not doing anything. He told her it was in her best interests if she did it now with him before the rest came. He said they would listen to him because he was the oldest and they all respected him. Ms A sat on the seat and was forced to give the applicant oral sex. This activity was interrupted by the arrival of the red car and the approach of the occupants of it. Ms A, having left the seat, was tackled by one of these men and then picked up and thrown into the bushes. After Ms A rose from where she had been thrown, she went and sat on the seat nearby. The applicant motioned to the other four men to go away and they retreated to the bushes, where they stood. The applicant pulled down his pants and moved Ms A’s head towards his penis and Ms A was again forced to give the applicant oral sex. The applicant ejaculated into Ms A’s mouth. Then she was forced to give four other men oral sex.

12 In those cases in which it was not the applicant personally who was having intercourse in that fashion, he was convicted concerning the intercourse in which the other offenders engaged on the basis that the acts were committed in company and the applicant aided and abetted each offender by his presence and willingness to assist if called upon.

13 Turning to Ms B, the first to force her to have oral sex was not the applicant, but the applicant was convicted in relation to that offence, being there as an aider and abetter.

14 Thereafter, Ms B stood in front of the toilet block, and after the red car arrived, six other men stood around her all saying “Give me a head job.” One of the men took Ms B by the arm and took her behind the toilet block where he had oral intercourse. Ms B then came back to the front of the toilet block where the applicant grabbed her by the arm and pulled her behind the toilet block, demanding “a head job”. He was joined by two other men, one of whom slapped her across the face. The applicant pushed Ms B to her knees, pushed her head towards his penis and forced her to engage in oral sex. The applicant ejaculated into Ms B’s mouth.

15 The detention for advantage counts went to the jury on the basis that the offending conduct occurred after the party arrived at the park. The assault charges went to the jury on the basis that the applicant was present aiding and abetting the actual assailant in the commission of the assaults described.

16 After all the acts of oral intercourse, the complainants were abandoned by the offenders. Assistance came when the occupants of a car pulled up and called the police. Complaints as to what occurred were then made.

The events of 30 August 2000

17 At about 3.00 pm on 30 August 2000 Ms C boarded a train at Belmore intending to go to Lidcombe. She was joined in the carriage by a group of five males, one of whom was the applicant’s brother, Mohammed Skaf. H, Mohamad Sanoussi and Mahmoud Sanoussi were other members of that group.

18 Ms C was persuaded to accompany the men to Bankstown where they left the train and went to the Marion Street carpark. Mohammed Skaf, having earlier taken her mobile phone, lured Ms C into one of the toilets, detained her there and had sexual intercourse with her. Ms C was then subjected to a series of sexual assaults in the toilet by the males she had met on the train, other than H. Eventually she was able to leave the toilet and Ms C entered a black car that contained two previously unencountered males and H. She thought she was going to be taken to the police but in fact she was driven to the Bankstown Trotting Club. H there committed a further sexual assault on Ms C near a shed in the deserted carpark. Then the black car reappeared and its driver told Ms C he would take her home. Ms C trusted him and got into the front passenger seat. In that car, the driver forced his finger into her vagina. Later that person had penile-vaginal sex with her and another person who had been a passenger in the car had forced oral sex.

19 After these events had occurred, Ms C saw a red car drive into the carpark of the trotting club. The driver and passenger from the black car went up to the males in the red car and appeared to have a conversation, after which the driver of the black car returned, opened the passenger’s door and let Ms C out, saying “You’re going with these guys. They’re going to take you home.” Ms C got into the red car, believing what she had been told. Bilal Skaf, the applicant, was one of two men sitting in the back seat and the victim sat between the two men. The red car was driven to a townhouse complex and then to a service station and subsequently to an industrial estate in Chullora.

20 In the course of that journey, a number of sexual offences were committed. The applicant, with Chami and another man, were charged with and convicted of detaining Ms C for sexual advantage and the count related to the detention of Ms C in the red car in the circumstances to which we shall now refer.

21 The applicant and his fellow backseat male passenger touched Ms C on the upper thighs, legs and breasts. This was the subject of the aggravated indecent assault charged. The applicant and his fellow passenger grabbed Ms C’s hands and put them around their exposed penises, moving her hands up and down. This behaviour was the basis of the charge of aggravated act of indecency.

22 The applicant and his companion in the backseat pulled up Ms C’s skirt and took it in turns to put their fingers into her vagina and then they did so together. This activity was the basis for the first of the offences under s 61J of the Crimes Act.

23 When the vehicle stopped at the service station, the front seat passenger got out and the driver, Chami, detained Ms C, having opened the glove box and taken what Ms C believed to be a weapon out of it, which he held to her head. Chami told Ms C, “Don’t move bitch, or you’re dead.” Ms C was then driven to the industrial estate where Ms C was left alone in the car with Chami whilst he had sexual intercourse with her. The applicant and his fellow back seat passenger, having left the vehicle, were keeping the doors to it closed. Others joined in sexual attacks upon Ms C after Chami had finished, and one of these offenders was the applicant. He went back into the car, pushed Ms C’s legs open, straddled her and had penile-vaginal intercourse. This conduct formed the basis for the second of the offences charged against the applicant under s 61J.

24 Ms C said that throughout the sexual assaults in the red car she heard mobile phones ringing and people talking on the phone. Around this time she saw a black car arrive similar to the first one. There were four males in it. One of them, on the Crown case, was Mohammed Skaf. After she was released from the red car, Ms C was walking past a point where it was being hosed down when the hose was turned on her. Thereafter, a further sexual assault was committed by Mohammed Skaf.

25 On 14 November 2000 the applicant provided a statement to the police to the effect that on 30 August 2000 he was off work but at home all day. He referred to Susan Bakry and others as being with him, and he said his brother and co-offender was at home on 30 August 2000 between 4.00 pm and 5.30 to 6.00 pm, and then again from 6.30 or 7.00 pm until 8.15 pm, returning again, having collected his father, about 9.00 pm.

26 The applicant incited Susan Bakry to make a false statement to the police supporting his version of events on 30 August 2000.

27 The above described attempt to support an alibi gave rise to the two charges of perverting the course of justice (counts 16, 17). The applicant pleaded guilty to those two charges during the course of his trial.

28 There can be no question but that the criminality of the applicant in the commission of the offences reviewed was of a very high level indeed.

29 The applicant was born on 14 September 1981, so that he was nearly nineteen years of age when these crimes were committed.

30 He left school at the age of fourteen without a School Certificate. Thereafter he worked at times as a spray painter and for a time with the State Rail Authority.

31 The applicant had a relatively minor criminal record with offences of larceny and shoplifting and some traffic offences. All such matters had been dealt with by the imposition of fines and the applicant had served no term of imprisonment prior to his arrest in relation to the offences currently being considered.

32 The applicant gave evidence at the first trial to the effect that he had consensual oral intercourse with Ms A and Ms B and he denied the assaults. The applicant gave no evidence at the second trial.

33 The judge remarked when sentencing the applicant that the applicant had expressed neither remorse nor contrition. Indeed, his Honour remarked (ROS 25) that the applicant during the trial and during the sentencing proceedings had conducted himself as if the proceedings were a joke. The applicant gave no evidence at the proceedings as to sentence.

The grounds of appeal


“1. His Honour erred in imposing the maximum available statutory sentence in circumstances that did not constitute the worst class of case.

2. His Honour erred in finding that the applicant was ‘the leader of a brutal gang of rapists’.

3. The disparity between the sentences imposed on the applicant and those imposed on his alleged co-offenders is such as to leave the applicant with a legitimate sense of grievance.

4. The learned sentencing judge took into account as an aggravating factor the fact that the applicant had pleaded not guilty.

5. His Honour erred in not taking into account the fact that the applicant pleaded guilty to the two counts of attempt pervert the course of justice.

6. His Honour erred in not correctly applying the principles in Veen v The Queen (No. 2) (1987) 164 CLR 465.

7. His Honour made a finding of fact that the applicant was aware that the other men had already sexually assaulted Miss C in the third trial, based on evidence which was inadmissible against the applicant and which was not admitted in evidence against him.

8. His Honour erred in finding the applicant had attempted to anally penetrate the complainant Miss C as the jury could not agree whether or not he was guilty of anally sexually assaulting Miss C and the applicant was not charged with or convicted of attempted sexual assault.

9. The sentencing proceedings miscarried as a result of the failure of the learned sentencing judge to maintain an appropriate level of judicial impartiality.

10. The sentences were individually and collectively manifestly excessive.”

34 Each of the above grounds was relied upon and was the subject of submissions on the hearing of the application, and it is proposed to address each ground in turn.

Ground 1: His Honour erred in imposing the maximum available statutory sentence in circumstances that did not constitute the worst class of case

35 As previously noted, the maximum penalty for an offence against s 61J of the Crimes Act is twenty years imprisonment. The judge imposed upon the applicant the maximum penalty for each of the nine counts of aggravated sexual intercourse arising from the events of 10 August 2000 and the judge also imposed upon him the maximum penalty for each of the two counts arising under s 61J concerning the events of 30 August 2000.

36 It is to be noted that none of the offences against s 61J of which the applicant was convicted arising from the events of 10 August 2000 involved penetration of either complainant’s vagina. Each offence charged for 10 August 2000 concerned an act of oral intercourse. The applicant forced Ms A to have oral intercourse with him, this activity being interrupted by the arrival of the second car load of offenders. The activity was resumed after Ms A had been assaulted and thrown into the bush. Following resumption, the applicant persisted in oral intercourse until he ejaculated into Ms A’s mouth. The applicant also committed an act of oral intercourse with Ms B in the circumstances previously outlined. However, the remaining offences against s 61J for which the applicant was sentenced concerning the events of 10 August 2000 were crimes concerning which others were principals in the first degree and the applicant was a principal in the second degree.

37 During the course of the crimes committed against Ms A, one of the offenders, not being the applicant, produced a knife, but when he did so another offender told him to put it away, and the possessor put it back in his pocket.

38 Each of the offences against s 61J committed on 10 August 2000 was a serious offence committed at night on a school student in a lonely location, and apart from the two complainants there were eight young men involved. Section 61H defines sexual intercourse as including various activities but it does not follow that every class of sexual intercourse is necessarily to be equated. In Ibbs v The Queen (1987) 163 CLR 447 it was determined that the maximum penalty was reserved for the worst type of case constituting sexual intercourse and not for the worst class of case falling within each of the categories of sexual intercourse defined in the equivalent provision of the West Australian Criminal Code to s 61H. In their joint judgment in Ibbs, Mason CJ and Wilson, Brennan, Toohey and Gaudron JJ disapproved (at pp 451-452) observations in R v Ginder (1987) 23 A Crim R 1, referring in particular to what Burt CJ said in that case at p 4:

“In his judgment in Reg. v Ginder (1987) 23 A Crim. R, at 4. his Honour [Burt CJ] had said that in fixing the sentence in a particular case —
‘ ... it should not be supposed that one means of sexual penetration, divorced from the circumstances, is more heinous than another. To make that distinction would, I think, be to hark back to notions which have, by the reforming Act, been abandoned.’”

39 Their Honours proceeded in considering the judgment under appeal in Ibbs:

“Smith J cited this passage from Ginder in stating his reasons for refusing leave to appeal against sentence in the present case. It appears that the majority regarded the Chief Justice's judgment in Ginder as stating a principle which should govern the fixing of sentences for offences of sexual assault. Although neither that judgment nor the judgments in this case suggest that the particular facts of each case are to be disregarded, the judgments appear to adopt as a sentencing principle the proposition that, ‘divorced from the circumstances’ (4), each kind of sexual penetration as defined in s 324F is neither more nor less heinous than another. That proposition cannot be accepted. The maximum penalty prescribed for the offence of sexual assault is reserved for the worst type of case falling within s 324D: Reg. v Tait and Bartley (1979) 46 FLR 386, at p 398; 24 ALR 473, at p 484.; Bensegger v The Queen [1979] WAR 65, at p 68.. The maximum penalty is not prescribed as an appropriate penalty for the worst type of case falling within each of the respective categories of sexual penetration described in s 324F. 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…”

40 In the present case, the task of the judge was to determine where the facts pertaining to the various acts of oral intercourse lay in a spectrum at one end of which lay the worst type of sexual assault falling within the definition of sexual intercourse (adopting the language of the members of the court in Ibbs).

41 Without minimising the gravity of the offences committed on 10 August 2000, they cannot individually or collectively be regarded as in the worst category of aggravated sexual assault for the purposes of s 61J.

42 Indeed, the Crown acknowledged in the course of submissions that there was error by the judge in imposing a sentence of twenty years imprisonment in respect of each of the offences concerning which he was a principal in the second degree. That acknowledgement is consistent with the following passage in the remarks on sentence where his Honour said (ROS 26):

“He [that is Bilal Skaf] was the ringleader. When he had actual intercourse with Miss A and Miss B he should be regarded as an offender of the worst type and in respect of each of those offences he should get the maximum sentence of twenty years. In respect of the offences of sexual intercourse without consent committed by others, he should get fifteen years on each matter…”

43 In the above passage his Honour correctly recognised that it was inappropriate in this case to impose the same sentence upon the applicant for those offences under s 61J where he was not a principal of the first degree. However, when he did proceed to impose sentences, for whatever reason, sentences of twenty years were imposed and not sentences of fifteen years.

44 The Crown submitted that this matter could be remitted to the District Court to enable the judge to correct the sentences pursuant to s 43 of the Crimes (Sentencing Procedure) Act. This Court does not consider that that would be an appropriate course even if s 43 was to be considered to be wide enough to enable the revision by the sentencing judge in the present circumstances. This Court does not consider it necessary to determine that question. The applicant is entitled to have this Court consider his appeal and all the grounds which have been argued.

45 Dealing with the two counts under s 61J concerning Ms A in which the applicant offended as principal in the first degree, the earlier of the two acts occurred before the arrival of the men in the second vehicle. The Crown submitted that it was arguable that this was a proper offence to attract the maximum penalty but this Court does not accept that submission. The second of the activities in which the applicant was directly engaged with Ms A was more serious than the earlier one because of the immediate presence of so many other people and because it ended with the applicant ejaculating into the mouth of Ms A. Nevertheless, having made this distinction between the substance of count 3 and the substance of count 5, this Court does not consider when the test addressed in Ibbs is applied, that either of the acts of oral intercourse committed by the applicant against Ms A could be regarded as fitting into the worst category of case. The same conclusion is inescapable when considering the only count under s 61J in which the applicant’s criminality concerning Ms B was that of a principal in the first degree.

46 Turning to the offences committed on 30 August 2000, there were two offences under s 61J, the first being the offence of digital penetration of Ms C’s vagina and the second being the offence of penile penetration. Each offence was a very serious one but neither of them could properly be regarded as being within the worst category. Once again, the Court stresses this is not a decision that is intended to minimise in any way the gravity of what the applicant did. The earlier incident in the car of digital penetration was committed not only in the presence of but in conjunction with similar activity by the other male in the back seat. A very serious view has to be taken of that offence for sentencing purposes but it is not an offence for which a penalty of twenty years imprisonment was appropriate.

47 The same conclusion has to be reached concerning the act of penile penetration committed whilst Ms C was a captive in the back seat of the car.

48 Mr Stratton referred to a number of decisions involving very serious crimes of sexual intercourse without consent which were not categorised as fitting into the worst case category: R v Boatswain (unreported, NSWCCA, 15 December 1993); R v Roberts (unreported, NSWCCA, 8 August 1994); R v Presta [2000] NSWCCA 40; R v AEM & Ors [2002] NSWCCA 58.

49 In R v Boatswain the offender pleaded guilty to seven counts of aggravated sexual intercourse without consent and to other offences. The aggravated sexual intercourse offences concerned two different victims on different occasions. The first victim was a fifty year old widowed doctor. The offender forced his way into her house and tied the doctor to a bed. At knifepoint he forced her to engage in fellatio, cunnilingus, sodomy and vaginal intercourse. The victim was left by the offender tied to the bed after the offender had urinated on her. The second victim was a thirty-year old woman, and again the offender entered her house. The offender produced a knife and threatened to kill the complainant. He penetrated her vaginally and anally and compelled the complainant to perform fellatio on him. The overall sentence imposed was a term of twenty-three years with a non parole period of fifteen years, and there was no Crown appeal.

50 Roberts was a case in which the offender was convicted of nine offences after trial. He forced a thirty-nine year old woman at knifepoint into her own home where he raped her orally, vaginally and anally. He left her naked and bound after urinating on her. He had a record of prior serious sexual assaults. He was sentenced to a minimum term of eleven years and an additional term of three years, and on appeal his sentence was reduced to a minimum term of ten years and an additional term of three years.

51 Presta was a case in which the offender pleaded guilty to twenty-one counts of aggravated sexual assault and five counts of kidnapping. His five victims were young men, two of them being aged fifteen years. In each case, the offender abducted the victim at gunpoint. Most of the victims were tied up or drugged. One victim had a bottle and a baton inserted into his anus and another victim had a baton inserted into his anus. The offender urinated into the latter victim’s mouth, whipped him with a leather belt and burnt him with a cigarette. A third victim was threatened with circumcision and each victim was subjected to multiple sexual assaults. The offender appealed against a total minimum term of fourteen years three months and an additional term of four years nine months. His appeal was dismissed, but it is to be observed that there was no Crown appeal.

52 In AEM the victims were two sixteen year old females who accepted an offer to be driven home early one morning after they had missed the last train. The offenders took them to the home of AEM Snr and they were forcibly detained there for a period of four hours and were subjected to serious sexual assaults. Each offender pleaded guilty to two counts of aggravated sexual intercourse without consent with a number of other offences of the same type placed on a Form 1. In the commission of the offences AEM produced a knife. One of the victims protested she was a virgin and was menstruating, and each of the men had vaginal intercourse with her. She was forced to perform fellatio on a number of occasions. A knife was produced against the other victim detained in another room and two of the offenders had vaginal intercourse with her. AEM was sentenced to six years imprisonment with a non parole period of four years; KEM was sentenced to five years seven months imprisonment with a non parole period of three years six months; and MM was sentenced to six years imprisonment with a non parole period of four years. On a Crown appeal, AEM’s sentence was increased to a total sentence of thirteen years with a non parole period of nine years; KEM’s sentence was increased to fourteen years with a non parole period of eight years; and MM’s sentence was increased to thirteen years with a non parole period of ten years.

53 It was submitted on the applicant’s behalf that consideration of the cases above reviewed reinforces the submission that neither of the s 61J offences which the applicant committed on 30 August 2000 was in the worst category of case. It was submitted that for an offence to be regarded as belonging to the worst class of case, the Court would require that there be some additional element or elements such as torture, or the infliction of bodily harm, or the performance of degrading acts such as urinating on the victim.

54 It would be both undesirable and inappropriate to seek to define the requirements of the category of the worst class of case. Plainly, it is not necessary for a case to so qualify that the conclusion be reached that it would be impossible to conceive of a worse case. However, more is required than that the case be regarded as a very serious one.

55 The Court here regards the offences committed by the applicant against s 61J on 30 August 2000 as most serious offences but neither such offence could be regarded as the worst class of case, so as to attract the maximum penalty for which s 61J makes provision.

56 Ground 1 has been established.

Ground 2: His Honour erred in finding that the applicant was “the leader of a brutal gang of rapists”

57 His Honour so described the applicant at the commencement of the remarks on sentence and he referred elsewhere to the assessment that the applicant was the leader when considering the events of 10 August 2000 and the events of 30 August 2000. In the remarks on sentence at p 24 his Honour described the applicant as “the leader of the gang on all occasions. [He] must be regarded as the worst of all offenders.” Plainly, that finding reflected itself in the sentences imposed, particularly for the offences under s 61J.

58 It was submitted on behalf of the applicant that the evidence did not support the judge’s finding of a leadership role.

59 Since such finding was to impact upon the length of the sentences imposed, the judge was required to be satisfied beyond reasonable doubt that the applicant was the leader.

60 What evidence was there to support such a conclusion?

61 The applicant was the oldest of the offenders who came before the court for sentence. He was nearly nineteen years of age at the time the offences were committed. Hajeid was close to the same age, being approximately one month younger than the applicant. Chami was some nine months short of his nineteenth birthday at the relevant time. Mohammed Skaf was seventeen years of age, as was H. Mohamad Sanoussi was nearly seventeen and Mahmoud Sanoussi was fifteen.

62 Of the three older offenders, Chami had no involvement in what happened on 10 August 2000. Hajeid had no involvement in what happened on 30 August 2000. The applicant was the only eighteen year old who was involved in the events on both of these dates.

63 In relation to the events of 10 August, the applicant, who introduced himself to Ms A and Ms B as “Adam”:

(i) pulled a bag of marijuana from his pocket, according to Ms B, and offered the complainants marijuana (T 529).

(ii) as the van in which the applicant was travelling in the back with another male and Ms A and Ms B reached the toll gates of the harbour bridge, he was the one who produced a $50 note to pay the toll (T 297);

(iii) the applicant used his mobile phone during the journey, arranging a meeting with those in the red car at McDonald’s (T 298);

(iv) in the van after it left McDonald’s, the applicant adopted a position at the back of the van, saying: “I’ll sit here and just keep a lookout for the cops” (T 314);

(v) the applicant spent the journey time prior to reaching McDonald’s with Ms B but then changed position for the last stage of the journey, sitting with Ms A. He asked her for sex and she declined;

(vi) on arrival at the park, the applicant was the first one out of the van and led Ms A to the park seat where he asked her for “a head job”. According to Ms A, the conversation she had with the applicant, and referred to earlier in this judgment, was in these terms:

Applicant: “Just give me a head job.”
Ms A: “No.”
Applicant: “When the other car comes here, they are just going to harass you. They won’t leave you alone until you give them what they want. Just do it now before they come.”
Ms A: “No, I don’t want to.”
Applicant: “If you don’t do it, they will probably bash you for not doing anything. It will be in your best interests if you do it now before they come. I’ll tell them you don’t do anything, and they will leave you alone.”

Ms A: “Why would they listen to you?”
Applicant: “Well I’m the oldest and they all respect me.”
Ms A: “Okay, but I still don’t want to do anything.”
Applicant: “Just do it now and get it over and done with before they come.”
Ms A then submitted to the first act of oral intercourse with the applicant, which act was interrupted by the approach of the occupants of the red car in the circumstances earlier outlined in the course of this judgment. Thereafter Ms A rose from the position into which she had been thrown, she went and sat on the seat nearby. The applicant motioned to the other four men to go away and they retreated to the bushes where they stood. Once again, the applicant spoke to Ms A, saying
“I told you it would happen. I warned you what they would do… If you don’t do what they want, this is what they do. So do it now. I’ll go over and tell them you don’t do anything and they will leave you alone. Do you want to get bashed or not?”
Ms A then submitted to the further act of oral intercourse earlier referred to;


(vii) the evidence of Ms B was that when she refused the applicant’s direction to give her “a head job”, another offender, described as having “plaited hair”, slapped her across the face, saying: “If you don’t do it, worse things will happen to you.” Then the applicant pushed her to the ground onto her knees and then pushed her head towards his penis. He held Ms B’s head in that position until he had ejaculated into her mouth;

(viii) in evidence which the applicant gave, he said during the course of the journey from Chatswood to Greenacre, the red car being driven by Hajeid was stopped by the police. The applicant telephoned Hajeid to find out what had happened and Hajeid returned the call to advise that the car was again on its way.

64 Turning to the events of 30 August 2000:

(i) Chami provided the car in which the applicant committed the sexual offences charged against him on that date. According to Chami, he became involved because the applicant asked him to act as the applicant’s driver, but the evidence of that assertion is to be found only in the interview Chami had with the police, so it is not evidence available against this applicant. It is not evidence capable of supporting a finding that the applicant had a leadership role;

(ii) the applicant took a leading role subsequently in seeking to provide an alibi for himself and his brother and he gave the police a false statement directed to this end and he persuaded Susan Bakry to support him.

65 The judge had the advantage of hearing the relevant evidence and of observing the offenders who were before him. There was evidence upon which it was open to the judge to find that the applicant adopted a leadership role in the events of 10 August 2000. The applicant asserted in his conversation with Ms A his leadership role, and there were indicators of this, both in the events leading to the commission of the offences at Greenacre and during their commission.

66 However, there was no evidence that the applicant was involved in the events of 30 August 2000 before his arrival at the trotting club carpark as a passenger in Chami’s car.

Ground 3: The disparity between the sentences imposed on the applicant and those imposed on his alleged co-offenders is such as to leave the applicant with a legitimate sense of grievance

67 The fundamental principles concerning parity between co-offenders and the much cited dicta as to these principles to be found in Lowe v The Queen (1984) 154 CLR 606, especially per Gibbs CJ at 609-610; per Mason J at 612-613; and per Dawson J at 623-624 do not require restatement here. In this case the only issue in relation to the ground under consideration is whether there is disparity such as to leave the applicant with a well-founded sense of grievance.

68 As previously noted, the applicant was sentenced to the maximum term for which s 61J made provision in relation to counts 3, 5, 6, 7, 8, 9, 10, 12 and 14. Counts 3, 5 and 10 were counts concerning which the applicant’s culpability was as a principal of the first degree. However, this was not the case concerning counts 6, 7, 8, 9, 12 and 14. Count 6 involved the “WRX man”. Counts 7 and 8 were allegations against unknown males. Count 9 was an allegation against the co-offender Ghanem. Count 12 was an allegation against a man known as “Sammy”.

69 The applicant was the only offender whose criminality attracted sentences of twenty years imprisonment and such sentences were not limited in his case to those in which he acted as a principal of the first degree. None of the other offenders that came to be sentenced for offences committed on 10 August had imposed upon him a head sentence in excess of fifteen years.

70 For example, when the co-offender Belal Hajeid is considered, he was sentenced on each of six counts under s 61J to head sentences of fifteen years with a non parole period of eight years. Comparing the structure of the sentences imposed upon Hajeid with those imposed upon the applicant, the applicant attracted head sentences of twenty years with non parole periods of fourteen years, whilst Hajeid attracted sentences of fifteen years with a non parole period of eight years on five of the six counts.

71 Allowing for the finding that the applicant had a leadership role in the events of 10 August, that does not satisfactorily account for a difference of five years in the head sentences, particularly in relation to those counts where both the applicant and Hajeid were being sentenced for accessorial responsibility.

72 The Court considers that this ground has been established concerning the sentences imposed for the offences dealt with at the first trial.

73 Turning to the sentences imposed for the events of 30 August 2000, head sentences of twenty years imprisonment were imposed upon the applicant for two offences under s 61J, the latter with a measure of accumulation, whereas the co-offender Chami was sentenced to a head sentence of fifteen years imprisonment for one offence under s 61J. Both Mahmoud Sanoussi and Mohamad Sanoussi were sentenced to terms of imprisonment of eleven years three months for offences under s 61J, allowing for a discount in each case of twenty-five percent for a plea of guilty.

74 The difference in the starting points for the sentences imposed upon the applicant compared with those imposed upon the co-offenders for offences under s 61J committed on 30 August 2000 cannot satisfactorily be explained simply by reference to the finding that the applicant was the leader, particularly since the evidence supported no finding of involvement by him in what occurred before his arrival at the trotting club. The applicant’s involvement only began when Ms C was enticed to enter the red car and, when the events of 30 August 2000 are being considered, the applicant’s leadership role was of little, if any, consequence.

75 None of the offenders who was sentenced concerning the events of 30 August 2000 was sentenced for precisely the same number of offences but the different approach that his Honour made in selecting a starting point for the head sentences for the s 61J offences was inappropriate.

76 Hence Ground 3 succeeds for the sentences as structured.

Ground 4: The learned sentencing judge took into account as an aggravating factor the fact that the applicant had pleaded not guilty

77 In the course of considering the evidence in relation to the offences committed on 10 August 2000, the judge said this (ROS 14):

“In the case of the offender, he chose to mount the entirely false case that each of complainants was a willing, if not eager, sexual partner. This case was put to each of the complainants and, I am sure, increased the sense of anguish each felt.”

78 Later, under the heading “Victim Impact Statements”, his Honour said (ROS 25):

“Each of the victims has submitted a Victim Impact Statement. I have carefully considered each one. Clearly each victim has suffered greatly and will continue to suffer. The sentences which I impose will take that into account. I would like to commend each of the complainants for their courage and strength in these proceedings. Each of them found the trials to be a great ordeal. The people of this State owe them a great debt. If they had not been prepared to come forward and to persist, this dangerous group of offenders could not have been brought to justice.”

79 It has been submitted that his Honour treated the fact that the complainants had been required to give evidence as an aggravating factor.

80 It is well settled that it is not permissible for a sentencing judge to treat the manner in which an offender has conducted his trial as an aggravating feature for the purposes of sentence: see Siganto v The Queen (1998) 194 CLR 656. This Court has determined, when dealing with the co-offender Chami, that in the case of that offender the judge did err in expressing the intention to take into account the manner in which he conducted his defence as an aggravating factor: R v Chami [2005] NSWCCA 299. However, in that case the judge expressly stated that he intended to take into account the harm and hurt suffered by the complainant as she revealed it in her victim impact statement. The complainant in that case dealt specifically in that statement with the trauma of the court proceedings, and in the manner in which he expressed himself the judge conveyed that he intended to take into account that feature of the victim impact statement as bearing upon sentence.

81 Unlike Chami, in this case none of the three complainants against whom the relevant offences were committed made mention of the conduct of the trial as a distressing feature. One of the complainants for the offences committed on 10 August 2000 made no statement and the other made no mention of the trial in her statement. The complainant involved in the offences committed on 30 August 2000 made no mention of the conduct of the trial in her statement.

82 In the context of considering the victim impact statements, the judge made the observation in this case that each of the complainants found the trials “to be a great ordeal”. That remark was in the context of commending the complainants for their courage in coming forward. The comment does not warrant the conclusion that the judge was conveying an intention to take the ordeal of the trial into account as an aggravating factor.

83 Nowhere did the judge express in his sentencing remarks an intention to take into account as an aggravating matter the manner in which the trial was conducted, and whilst his Honour expressed an erroneous intention to do so in Chami, that was in the context of considering specific content in the relevant victim impact statement.

84 This Court is not persuaded that a similar error occurred when sentencing this offender.

85 On behalf of the applicant, attention has been drawn to the fact that the judge repeated remarks to the effect that the applicant expressed no remorse or contrition: ROS 24; 25; and 28. It was submitted that those repeated references convey that the fact that the applicant pleaded not guilty was a matter being taken into account as an aggravating factor for the purposes of sentence. The making of an observation that there was no expression of remorse or contrition cannot of itself be taken to convey an intention to proceed to sentence treating the plea of not guilty as an aggravating circumstance. The Court is not satisfied that the judge erred in doing so in this case.

86 It has not been established that the judge treated the plea of not guilty as an aggravating feature or that he treated the manner of the conduct of the defence as an aggravating feature. This ground fails.

Ground 5: His Honour erred in not taking into account the fact that the applicant pleaded guilty to the two counts of attempt pervert the course of justice

87 The applicant pleaded guilty to the two counts in question during the course of the first trial. The judge did not refer to these pleas in the course of the remarks on sentence but on the three occasions mentioned earlier referred to the applicant’s refusal to express remorse or contrition.

88 The relevant pleas were expressed on 9 May 2002, which was the eighth day of the trial. The pleas were very late ones. The Crown has submitted that their utilitarian value was so slight as to call for no discount.

89 It is always desirable for a sentencing judge in remarks on sentence to address specifically the issue of a plea of guilty and to deal with its utilitarian value and the question of any discount: see R v Thomson; R v Houlton [2000] NSWCCA 309.

90 Because the pleas were entered so late in the course of the trial, they had little, if any, utilitarian effect and their timing was such that the pleas did nothing to undermine the finding of the judge that the applicant was neither remorseful nor contrite.

91 Strictly speaking, however, the judge was required to fix an appropriate sentence for counts 16 and 17, and for the purpose of doing so was required to consider the usefulness of the pleas. The judge does not appear to have done so. Ground 5 is established.

92 It is convenient to deal with grounds 6 and 10 together, so the Court now passes to a consideration of ground 7.

Ground 7: His Honour made a finding of fact that the applicant was aware that the other men had already sexually assaulted Miss C in the third trial, based on evidence which was inadmissible against the applicant and which was not admitted in evidence against him

93 It is submitted that the judge made a finding that the applicant was aware of Ms C having been raped before she entered the red car on evidence which was inadmissible against the applicant.

94 The passage to which this ground draws attention is to be found at ROS 19-20:

“The complainant saw the occupants of the black car go over to the red car and talk to its occupants. This enables me to conclude beyond reasonable doubt that the men in the red car were told of the rapes which had already occurred.
If there was any doubt about this matter, in his record of interview Chami claimed: ‘Well, I coped a phone call from’ – and here I interpolate the letter ‘X’ – ‘he told me there’s a slut at the Bankstown Trotting Club.’”

95 “X” was a reference to the applicant. Chami gave no evidence at the trial and, as earlier observed, his record of interview was not evidence against the applicant, so that it was not open to his Honour to rely upon what Chami told the police as evidencing the applicant’s state of knowledge.

96 Whilst the content of Chami’s record of interview was inadmissible against the applicant, there was other evidence to which the Crown has adverted in written submissions from which his Honour was in a position to draw a conclusion about the applicant’s state of knowledge.

97 There was evidence that the applicant had made a telephone call to H from an area that included his home at 6.44 pm. He made another call to H from another sector at 6.59 pm, and there were a series of calls from H’s mobile to the applicant from 9.07 pm onwards. H had been present when Ms C was attacked in the toilet block at Marion Street and he accompanied her in the black car from Marion Street to the trotting club. He there assaulted her near a shed before the other occupants of the black car assaulted her.

98 Mohammed Skaf was the first person to have intercourse with the complainant at the Marion Street toilet block. The evidence was that he took her mobile phone. There was evidence that Mohammed Skaf rang the applicant at 7.23 pm, 7.24 pm and 7.44 pm. Ms C gave evidence that before she was passed over to the occupants of the red car, she observed that there were four occupants in the red car and the people in the black car spent “about ten minutes talking to them” (see T 73, 30 April 2002). Once Ms C entered the red car the applicant and the other back seat male passenger began to offend against her. Whilst Ms C was being assaulted in the red car, her evidence was that there were mobile phones ringing and people talking on the phones. After the occupants of the red car had finished with Ms C, the black car arrived with Mohammed Skaf as a passenger.

99 The Crown submitted that the evidence justified a finding that Ms C was passed from one group to another. The behaviour of the offenders towards Ms C evidenced an awareness of what had earlier been happening to her. It was open to the judge to conclude that it was no coincidence that the applicant, Chami and the other occupants of the red car had proceeded to the trotting club.

100 The remarks to which this ground invites attention were so expressed as to convey that the judge did not consider himself to be dependent upon the content of Chami’s interview with the police to reach the conclusion as to the applicant’s awareness. The evidence to which the court was referred in the course of the Crown submissions as above reviewed entitled the judge to conclude that the applicant had an awareness before Ms C entered the red car of what had been happening to her from the time that she arrived at Marion Street earlier that evening.

101 Ground 7 has not been established.

Ground 8: His Honour erred in finding the applicant had attempted to anally penetrate the complainant as the jury could not agree whether or not he was guilty of anally sexually assaulting the complainant and the applicant was not charged with or convicted of attempted sexual assault

102 In count 12 at the trial concerning the events of 30 August 2000, the applicant was charged with non-consensual anal intercourse with Ms C at the same time as she was being forced to engage in an act of oral intercourse with another offender. The jury disagreed on this count.

103 The judge dealt with this question at ROS 22:

“He was also charged with forcing non-consensual anal sex upon her. A jury could not agree on it. I am satisfied beyond reasonable doubt that he was in the car, he was kneeling behind her, and he was, at the very least, attempting to anally penetrate her at the same time that Y was forcing oral sex upon her.”

104 Section 61P renders a person who attempts to commit an offence under s 61J liable to the penalty provided for the commission of an offence under s 61J. The applicant was not charged with attempted sexual intercourse without consent nor was he convicted of such a charge.

105 Plainly, it was not open to the judge to sentence the applicant for a crime with which he had not been charged or convicted: see Di Simoni v The Queen (1981) 147 CLR 383 per Gibbs CJ at 389 and per Wilson J at 395-396.

106 There was some discussion about the jury’s verdict on count 12 prior to the judge passing sentence on 15 August 2002. His Honour remarked:

“The jury found that he didn’t but I was satisfied he was attempting to do something
CROWN PROSECUTOR: The jury was undecided.
HIS HONOUR: The jury did not find he didn’t, the jury could not agree. The evidence was that he was at her rear. She said putting his penis in the rear. They could not agree. That may mean they were not sure whether he got it in or not, but I do not think it means he was not in the car doing something. It amounted to two men in the car at the same time while the other man Ghanem is having oral intercourse with her, one in front and one behind her. It cannot be dealt with, something that is not convicted.
HEALEY: I would ask your Honour to take the lesser view of the matter, indeed that anything occurred that would impact upon your sentencing.
HIS HONOUR: I cannot allow it to impact on my sentence. I can only say it is an event that occurred. He was in the car at the time with this other man. That in itself, it has an impact. That suggests the two men and the girl sandwiched between them with, you would assume, she would be more terrified and humiliated and upset than if it were only one man.

HEALEY: It aggravated, I’d ask your Honour not to do that.
HIS HONOUR: To what extent I don’t know.”

107 In the course of that exchange the judge correctly stated that he could not allow “it”, presumably a reference to the substance of count 12, to impact on his sentence. However, the extract from the remarks on sentence is of concern.

108 The Crown submitted that the reference meant only that the judge thought it necessary to record the occurrence of the event less there was any feeling on the part of Ms C that she had been disbelieved. On the other hand, the judge expressed a finding beyond reasonable doubt that there had been an attempt at non-consensual anal intercourse. Such finding suggested that the matter was to be treated in some way as aggravating the applicant’s criminality. The activity the subject of count 12 was not related to either of the acts of sexual intercourse occurring in the car and for which the applicant was convicted.

109 In view of the verdict of the jury on count 12 and in the absence of any finding of an attempted act of sexual intercourse by the jury, there was no proper basis for treating the finding expressed by his Honour as an aggravating feature of any offence for which the applicant was to be sentenced.

110 Ground 8 has been established.

Ground 9: The sentencing proceedings miscarried as a result of the failure of the learned sentencing judge to maintain an appropriate level of judicial impartiality

111 The sentencing remarks which prompted ground 9 have been identified in the applicant’s written submissions as being the following:

“What this trial showed was that he was the leader of the pack, a liar, a bully, a coward, callous and mean. He is in truth a menace to any civilised society.” (ROS 15)
“The prisoner and these men treated her [the complainant] much like wild animals treat prey they have killed.”

112 It is always necessary for a sentencing judge to approach the sentencing task calmly and dispassionately. Mr Stratton has referred to dicta in Ryan v The Queen (2001) 206 CLR 267 by Kirby J at 302 and by Hayne J at 306 where their Honours emphasised the need for the judge to put emotion aside for the purposes of the sentencing task. Mr Stratton submitted that his Honour’s remarks reveal that his Honour failed to do so.

113 It is not considered that the two extracts from the judgment upon which the applicant relies establish that the sentencing judge was distracted by emotion so as to be unable to perform his task judicially. For reasons which are stated elsewhere in this judgment, the Court considers that the sentencing process miscarried, but, dealing discretely with ground 9, it is not considered that this ground has been made good.

114 There remain for consideration grounds 6 and 10.

Ground 6: His Honour erred in not correctly applying the principles in Veen v The Queen (No. 2) (1987) 164 CLR 465

Ground 10: The sentences were individually and collectively manifestly excessive

115 It was submitted on behalf of the applicant that the judge conveyed in his remarks on sentence an intention to impose an incapacitating sentence, that is to say a sentence of such length that by the time the applicant was released he would be too old to have the capacity to commit similar offences. The remarks to which attention has been drawn in support of this ground were the following:

“The courts must attempt to protect society from the possibility that those who have been caught will engage in this type of activity again.” (ROS 1)
“What this trial showed was that he [the applicant] was the leader of the pack, a liar, a bully, a coward, callous and mean. He is, in truth, a menace to any civilised society.” (ROS 15)
“At that stage he will have served forty years before he is entitled to parole taking into account the period of one month and four days of custody before the first trial. Hopefully, he will no longer be a menace to society.” (ROS 7, 10 October 2002)

116 A basic objective of any sentencing exercise is that the sentence imposed should be reasonably proportionate to the offence committed and its attendant circumstances. The expression of the ground under consideration draws attention to the decision in Veen, where in the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ their Honours said (at 472):

“The principle of proportionality is now firmly established in this country. It was the unanimous view of the court in Veen (No. 1) that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender: (1979) 143 CLR 467, 468, 482-483, and 495.”

117 And, later (at 473):

“It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing a material sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.”

118 It was submitted that in this case the overall effect of the sentences imposed upon the applicant seen in the light of the remarks of the judge to which reference has been made reveal that the judge imposed sentences that were outside the principles expressed in Veen (No 2).

119 The Crown’s response to the applicant’s submissions was to draw attention to the fact that the applicant was before the judge to be sentenced for no less than eleven crimes against s 61J and other crimes, and that his criminal behaviour was such as to require due recognition of the applicant’s propensity to commit crimes of the type for which he was before the court.

120 It does not necessarily follow from the judge’s expressions to which this ground draws attention that his Honour set about determining sentences with the object of ensuring that the applicant was not released until he was incapable of committing the like offences. Consideration of ground 6 cannot be divorced from consideration of ground 10.

121 This Court has already determined when considering all the offences for which the applicant was convicted involving s 61J of the Crimes Act that none of them was in the category of the worst class of case. It does not follow from this conclusion that the offences against s 61J committed by the applicant are not to be regarded as very serious crimes. Indeed, they are to be regarded as very serious crimes, and the Crown has pointed to features to be taken into account in assessing the gravity of the offences and the overall criminality of the applicant:

(i) his offences were committed on separate occasions and concerned three different victims;

(ii) all the victims were young women, eighteen years of age, and two of them were school students;

(iii) eleven of the offences were offences against s 61J of the Crimes Act , and of those eleven offences eight of them were committed upon the one complainant, two on the second complainant and one on the third complainant;

(iv) the applicant was found to have a leadership role, a finding this Court considers to be more relevant to the events of 10 August 2000 than to those of 30 August 2000;

(v) his offences were committed at remote locations;

(vi) his offences were committed in circumstances calculated to degrade the victims;

(vii) the victims, being Ms A and Ms C, provided victim impact statements which disclose the severe impact that the offences had upon each of them. Ms B did not provide a victim impact statement, but as was observed in AEM (at para 94):

“The long term effects of the trauma invariably encountered by victims [of sexual assault] are well documented.”

(viii) the nature and extent of the company in which the various offences were committed by the applicant was relevant to the assessment of the gravity of the offences charged: see R v Way (2004) 60 NSWLR 168 at [107].

122 This Court recognises that the sentencing judge had a most difficult task to perform, not only in arriving at sentences appropriate to the various offences, but in striking a proper balance between such sentences and the principle of totality. However, notwithstanding the assessment of this Court as to the serious nature of the offences committed by the applicant, it is of the opinion that the sentences for the offences under s 61J viewed individually were manifestly excessive, and so too was the overall effect brought about by the extent of the accumulation of the sentences that were imposed. It is considered further that the overall effect reflects a departure from the principles stated in Veen (No. 2). It is also noted that the offences against s 319 of the Crimes Act attracted sentences which, according to Judicial Commission statistics, are significantly higher than any other sentences for this type of offence that have been recorded. The statistical base is limited to twenty-three cases, but in all but thirteen percent of cases the sentences have not previously exceeded three years according to these statistics, and the highest sentence previously imposed for an offence against s 319 has been one of five years imprisonment.

123 Grounds 1, 3, 5, 6, 8 and 10 have been established and the intervention of this Court is warranted. The sentences must be quashed and the applicant must be re-sentenced.

The re-sentencing of the applicant

124 This Court received an affidavit from David Barrow sworn 21 July 2005. Mr Barrow is the solicitor with the conduct of this matter on behalf of the applicant and his affidavit addresses the circumstances of the applicant’s detention. Prior to being sentenced and up to the present time, the applicant has been a protection inmate within the prison system. Two days after he was sentenced, he was sent to the High Risk Management Unit at Goulburn. He remained there until transferred to the Multi-Purpose Unit at Goulburn on 16 May 2003. Some two months later he was returned to the High Risk Management Unit after certain sketches were allegedly found in his cell. Twelve months later, in July 2004, the applicant was again moved to the Multi-Purpose Unit. In February 2005 he was moved to a protection area at Goulburn Gaol, where he remains. Because of his classification, the applicant is presently unable to attend educational classes.

125 Mr Barrow arranged for Dr Lucas, a specialist psychiatrist, to assess the applicant and for this purpose Dr Lucas attended the Goulburn Correctional Centre on 6 July 2005. The report of Dr Lucas of 14 July 2005 is in evidence. Following his assessment, Dr Lucas expressed the following opinion:

“Mr. Skaf is a man just short of twenty-four years of age who is facing a very long prison sentence. He has a number of appeals and faces a possible re-trial so his precise sentence may not be known for some time. Thus he faces continuing uncertainty.
One of the reasons for your referral was your belief that his incarceration has to date been extremely onerous. He has been in prison for nearly five years, spent much time in segregation without association with other prisoners and despite being sentenced has not had an opportunity for education or employment. Quite realistically he has fears for the future and the effects of institutionalisation, especially as he perceives that his classification may not significantly vary for many years, restricting access to education, employment and rehabilitation opportunities.
In addition to these problems Mr. Skaf has suffered depression, anxiety and panic attacks while in prison. Early on he was described as having an Adjustment Disorder and on 6.3.03 Dr. Michael McGrath, consultant psychiatrist, diagnosed Major Depression and a longstanding history of depressive symptoms. Mr. Skaf has improved but anxiety persists accompanied by somatic symptoms.
His psychiatric prognosis is for continuing anxiety likely to be exacerbated at times. The present depressive symptoms are mild but will be prone to exacerbation depending on his legal instruction and events in prison and in his family. If his prison regime does not improve his mental state will almost certainly suffer.
Mr. Skaf needs active assistance early in his sentence if he is to be equipped to deal with a very long period of incarceration. Without work and education or psychological help he will be ill-equipped to deal with the sentence and his eventual return to the community will be difficult indeed. My reading of his clinical file suggests he has been receiving good medical and psychiatric care but this needs to be supplemented by psychological counselling and inclusion in programs which will occupy him and further his development.”

126 It is appropriate to note the added hardship that the applicant has experienced thus far in his imprisonment by reason of his classification. It is also appropriate to recognise that this is the applicant’s first experience of prison, that he entered prison at a young age, and that he is still a young man who will not attain the age of twenty-four years until September 2005.

127 Despite the age of this applicant, the gravity of the crimes for which he came before the court to be sentenced, and for which he is now to be re-sentenced, is such that the important role of the sentencing principles of deterrence, denunciation and protection of the public must be given their appropriate weight. The gravity of the offences which the applicant committed in company with other men must be recognised by the imposition of condign punishment.

128 One question which this Court must address is whether it is appropriate that the sentences be served concurrently or cumulatively. On this question it is relevant to call in aid the remarks of Sully J in Wheeler [2000] NSWCCA 34 at [34]-[37], cited with approval in Bavadra (2000) 115 A Crim R 152:

“34 The correct application to such a case as the present one of the principles established by the decision in Pearce is not by any means a simple matter. Two things not necessarily reconcilable, if indeed reconcilable at all, have to be held in a fair overall balance.
35 One of them is the consideration conventionally referred to in the Courts as the principle of totality. That is to say, the principle that accepts the need, in a case of multiple offences, to adopt an approach which is more discriminating than the approach of simply fixing individual sentences, and then simply aggregating the individual sentences so as to reach a result, which such a process almost inevitably produces, of a truly enormous head sentence.
36 The countervailing factor, no less legitimate, is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose.
37 It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour.”

129 In our opinion, it is appropriate that there be some measure of accumulation of the sentences to be imposed for the offences committed on 10 August 2000. It is to be recognised that different victims were involved on that night. It is further appropriate to impose a still greater measure of accumulation of the sentences to be imposed for the offences of 30 August 2000 committed not only at a different time and place but involving yet another victim.

The offences of 10 August 2000

130 The sentencing judge gave the applicant the benefit of concurrent sentences for the unlawful detention counts and for the assault counts. This Court will give the applicant the like benefit.

131 The accessorial counts constituted serious offences for which this Court considers a term of imprisonment for fourteen years is appropriate, with all sentences for the accessorial counts to be served concurrently. Having regard to the sentences to be imposed for these counts, the Court will not set non parole periods in respect of counts 1, 2, 4, 11 and 13.

132 For the offences against Ms A in which the applicant offended as a principal in the first degree, the Court considers a term of imprisonment of fifteen years to be appropriate, and to recognise those considerations to which Sully J referred in Wheeler in paras [36] and [37] of his Honour’s judgment the Court considers it appropriate to set a commencing date for counts 3 and 5 one year later than the commencing date for the accessorial counts.

133 Finally, for the offence against Ms B in which the applicant offended as a principal in the first degree, it is considered that a sentence of fifteen years should be imposed with such sentence to commence two years after the commencement date to be set for the offences against Ms A.

The offences on 30 August 2000

134 To make what the Court perceives to be appropriate provision for the principles in Pearce v The Queen (1994) 194 CLR 610, the Court considers it appropriate to set commencement dates which make the sentences in this group in part concurrent with and in part cumulative upon the non parole periods set for the s 61J offences committed on 10 August 2000, and also to set different commencement dates for the various offences in this group other than the unlawful detention offence and the offences against s 319 of the Crimes Act which will be specified to commence on the same date. As to the offences of pervert the course of justice, the Court is persuaded by Mr Stratton’s submissions that the appropriate sentence for those offences is a term of imprisonment of three years.

135 The Court considers that the sentences set by the trial judge for the aggravated indecent assault in company and aggravated act of indecency in company were appropriate, and this will be reflected in the sentences now to be imposed. The Court will not set non parole periods for the sentences other than those for the offences against s 61J, because of the sentences to be imposed for those two offences.

136 In all the circumstances, the offence involving digital penetration is regarded as a most serious offence which warrants a sentence of fifteen years imprisonment with a non parole period of nine years. An even more serious offence was the act of penile penetration later committed, and the Court considers the appropriate sentence for that offence is one of sixteen years imprisonment, with a non parole period of ten years.

137 Overall, the sentences imposed by this Court will aggregate twenty-eight years imprisonment, with an effective non parole period of twenty-two years. The sentences as structured will afford to the applicant an opportunity of parole over a six year period, and the Court does not consider there are circumstances which warrant any longer non parole period than that for which the sentences provide. In particular, the sentences as structured will afford the opportunity for a lengthy period of supervision to adjust to society following the applicant’s eventual release.

Formal orders and sentences

138 The Court makes the following orders:

1. Leave to appeal is granted.

2. The appeal against the sentences imposed is allowed and the sentences imposed in the District Court are quashed.

3. In lieu thereof, sentences are imposed as follows:

For the offences committed on 10 August 2000
For the offences of detain for advantage (counts 1 and 2): on each count the applicant is sentenced to imprisonment for seven years to commence on 12 February 2001 and to expire on 11 February 2008.
For the three offences of assault (counts 4, 11 and 13): on each count the applicant is sentenced to imprisonment for two years, again to commence on 12 February 2001 and to expire on 11 February 2003.
For the accessorial offences of aggravated sexual intercourse without consent in company (counts 6, 7, 8, 9, 10 and 12): on each count the applicant is sentenced to imprisonment for fourteen years to date from 12 February 2001 and to expire on 11 February 2015 with a non parole period of ten years six months to commence on 12 February 2001 and to expire on 11 August 2011.
For the offences of aggravated sexual intercourse without consent (counts 3 and 5 involving Ms A): on each count the applicant is sentenced to imprisonment for a term of fifteen years to commence on 12 February 2002 and to expire on 11 February 2017 with a non parole period of eleven years three months commencing on 12 February 2002 and expiring 11 May 2013.
For the offence of aggravated sexual intercourse without consent in company (count 14 involving Ms B): the applicant is sentenced to imprisonment for fifteen years to commence on 12 February 2004 and to expire on 11 February 2019 with a non parole period of eleven years three months commencing on 12 February 2004 and expiring on 11 May 2015.
For the offences committed on 30 August 2000
For the offence of detain for advantage (count 3): the applicant is sentenced to imprisonment for a period of seven years to commence on 12 February 2009 and to expire on 11 February 2016.
For the offences of pervert the course of justice (counts 16, 17): on each count the applicant is sentenced to imprisonment for three years to commence on 12 February 2009 and to expire on 11 February 2012.
For the offences of aggravated indecent assault in company and aggravated act of indecency in company (counts 4, 5): on each count the applicant is sentenced to imprisonment for two years to commence on 12 February 2011 and to expire on 11 February 2013.
For the offence of aggravated sexual intercourse without consent (in company), being the act of digital penetration (count 6): the applicant is sentenced to imprisonment for a term of fifteen years commencing 12 February 2012 and expiring on 11 February 2027 with a non parole period of nine years to commence on 12 February 2012 and to expire on 11 February 2021.
For the remaining act of aggravated sexual intercourse without consent, being the act of penile penetration (count 10): the applicant is sentenced to imprisonment for a term of sixteen years to commence on 12 February 2013 and to expire on 11 February 2029 with a non parole period of ten years to commence on 12 February 2013 and to expire on 11 February 2023.
The first date upon which the applicant will become eligible for consideration of release on parole will therefore be 11 February 2023.
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