R v Chami

[2005] NSWCCA 299

CITATION:	R v Chami [2005] NSWCCA 299
HEARING DATE(S):	25 July 2005
JUDGMENT DATE:	16 September 2005
JUDGMENT OF:	Studdert J; Bell J; Latham J
DECISION:	Leave to appeal granted; appeal dismissed.

CATCHWORDS:	Criminal law - application for leave to appeal against sentences - aggravated sexual intercourse without consent (in company) - detention of complainant for advantage - whether errors in findings by sentencing judge - whether sentences manifestly excessive.
LEGISLATION CITED:	Crimes Act, ss 61J, 90A Criminal Appeal Act, s 6(3)
CASES CITED:	R v AEM Snr; R v KEM; R v MM [2002] NSWCCA 58 R v Gray (1977) VR 225 R v H [2005] NSWCCA 282 R v Hajeid [2005] NSWCCA 262 R v Mahmoud Sanoussi [2005] NSWCCA R v Mohammad Sanoussi [2005] NSWCCA R v Bilal Skaf [2005] NSWCCA 297 R v Mohammed Skaf [2005] NSWCCA 298 Siganto v The Queen (1998) 194 CLR 656
PARTIES:	Regina v Mahmoud Chami
FILE NUMBER(S):	CCA 2003/3231
COUNSEL:	D. Arnott (Crown) P. Byrne SC (Applicant)
SOLICITORS:	S. Kavanagh (Crown) Andrews Lawyers (Applicant)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/1201
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ

2003/3231

STUDDERT J
BELL J
LATHAM J

Friday 16 September 2005

REGINA v MAHMOUD CHAMI

Judgment

1 THE COURT: The applicant, Mahmoud Chami, seeks leave to appeal against sentences imposed by his Honour Judge Finnane QC on 9 August 2002. The applicant had earlier stood trial with three other men, including Bilal Skaf and Mohammed Skaf, arising out of events that occurred on 30 August 2000. The applicant was found guilty on two counts:

(i) detain with intent to hold for sexual advantage;

(ii) aggravated sexual intercourse (being in company).

2 For the detention count, the sentencing judge sentenced the applicant to seven years imprisonment to date from 7 June 2002 and to expire on 6 June 2009. His Honour set a non parole period of three years less two days to expire on 4 June 2005.

3 In respect of the aggravated sexual intercourse, the judge imposed a term of imprisonment of fifteen years to commence on 4 June 2005 and to expire on 3 June 2020. His Honour set a non parole period of seven years six months to expire on 3 December 2012.

4 The applicant’s sentences therefore effectively aggregated eighteen years imprisonment with a non parole period of ten years six months.

5 The offence of detain with intent to hold for sexual advantage is an offence for which s 90A of the Crimes Act (now repealed) was to be treated for the purposes of this case as providing for a maximum penalty of fourteen years. The offence of aggravated sexual intercourse (being in company) was in a category of offence for which s 61J of the Crimes Act provided a maximum penalty of imprisonment for twenty years.

The facts outlined

6 On 30 August 2000 at about 3.00 pm Ms C boarded a train at Belmore intending to go to Lidcombe. She was approached by a group of five males, that group including Mohammed Skaf, Mohamad Sanoussi and Mahmoud Sanoussi. Ms C was persuaded to travel with these persons to Bankstown railway station. From there she was taken to the Marion Street carpark; then later to the Bankstown Trotting Club; and then later to an industrial estate at Chullora.

7 At the Marion Street toilet block Ms C was detained and subjected to non-consensual sexual intercourse with a number of offenders. From Marion Street Ms C was taken in a black car to the Bankstown Trotting Club and other sexual offences were committed by other males. It was at the trotting club that Ms C encountered the applicant for the first time.

8 The applicant did not give evidence at the trial but he had been interviewed by the police on 13 October 2002 and in the course of an ERISP on that date, which later was introduced into evidence at his trial, the applicant told police he received a telephone call from Bilal Skaf on 30 August 2000. The receipt of this phone call prompted the applicant to proceed to the trotting club. Further reference to the content of that call will be made presently.

9 The applicant drove a red car to the trotting club and he had three passengers, including Bilal Skaf, Mohamed Ghanem and an unidentified male referred to as “Nike Sam”, so called apparently because he was wearing a grey Nike jumper.

10 Following the applicant’s arrival at the trotting club, the driver and the passenger of the black car approached the applicant and the other occupants of his car and appeared to engage in discussion before returning to the black car and informing Ms C “You’re going with these guys. They’re going to take you home.” Ms C entered the red car believing what she had been told.

11 The count of detaining for sexual advantage charged against the applicant spanned the period that Ms C was in the red car, of which the applicant was the driver. The journey began at the trotting club and ended at the industrial estate at Chullora. After stopping briefly outside a townhouse complex near the applicant’s residence, the car was driven by the applicant to a service station. During the journey the two male passengers in the back seat, who were seated on either side of Ms C, handled Ms C’s breasts, placed her hands on their penises and inserted their fingers in her vagina. At the service station Ms C tried to leave the car but the applicant grabbed her left shoulder and pushed her down. He opened the glove box and took what Ms C believed to be a weapon from it, which he held to her head. Ms C said she felt “cold metal” and thought it was a gun. The applicant told her “Don’t move, bitch, or you’re dead.”

12 Ms C was then driven to the industrial estate in Chullora and the occupants, other than the applicant and Ms C, there left the car. However, the back seat passengers proceeded to hold the doors closed to block Ms C’s exit from the car.

13 The applicant, who had remained in the car, moved to the back seat next to Ms C and sat next to Ms C in the back. He unzipped his pants. Ms C said, “You’re not going to do it too?”, and he said “Fuck me”. He put a condom on his penis, pushed Ms C onto her back and pulled up her skirt. He pulled down her underwear, spread her legs open and had penile-vaginal intercourse with her. She was crying at the time.

14 The applicant left the car but was followed into it by the other three passengers who had earlier been travelling in the red car and each of those men sexually assaulted Ms C.

15 Throughout the period that the sexual assaults were occurring in the red car, Ms C heard mobile phones ringing and people talking on the phone. She saw a black car arrive but was uncertain as to whether it was the same one in which she had been driven to the trotting club. There were four males in that black vehicle.

16 Ms C left the red car after the assaults referred to and it was then driven towards the driveway of the industrial estate where it was hosed down. Ms C started to walk past the red car but she was hosed down by someone from the red car before managing to reach the street. She was then brought back by one of the people who had just arrived in the black car and noticed that the red car had by that time gone. Ms C was then further assaulted, but the details of that criminal behaviour are not of relevance for the purpose of considering the applicant’s criminality.

17 The offence against s 90A of the Crimes Act relates to the period in which Ms C was in the red car, and the aggravated sexual intercourse offence committed by the applicant relates to the act of penile-vaginal intercourse in which the applicant engaged, as described in the above account.

18 There can be no question but that, viewed objectively, the applicant’s criminality was very serious indeed.

19 Before considering the various grounds of appeal, it is appropriate to record details of the subjective features of this case.

20 The applicant was born on 31 March 1982 so that at the time of the commission of the offences he was more than eighteen years of age. The sentencing judge remarked that he had no previous criminal convictions and was a person of prior good character. He had employment as a bricklayer and he had a supportive family.

21 A psychologist’s report was placed before the judge on behalf of the applicant. The judge remarked that this disclosed that the applicant came from a stable and loving family background and that his parents and siblings were respectable and well educated. The psychologist noted that there was a medium to low risk of his offending again, and that the applicant when assessed was housed in strict protection for his own protection. Ms Barrier, the psychologist, noted that the applicant expressed sympathy for Ms C in relation to what had happened to her. Of course, the applicant gave no evidence at the hearing on sentence but his Honour took into account in the applicant’s favour “that he had shown some remorse” (ROS 12, 18, an apparent reference to what he had said to Ms Barrier).

The grounds of appeal

22 The grounds of appeal are the following:

“(i) The factual basis for determining the objective seriousness of the applicant’s criminality is entirely unclear.

(ii) His Honour erred by using as a factor adverse to the applicant evidence of the criminal conduct of other offenders in respect of which the applicant was not charged.

(iii) His Honour erred in finding that the offence of unlawful detention commenced when the complainant was sexually assaulted in the back seat of the applicant’s car by [Bilal Skaf] and an unknown male.

(iv) His Honour erred in finding that the applicant’s plea of not guilty and the manner of the conduct of the trial was an aggravating feature for the purpose of sentence.

(v) His Honour erred in determining that the objective criminality of the applicant’s conduct invited the imposition of heavier penalties than were imposed on the offenders in R v AEM ; R v KEM ; R v MM [2002] NSWCCA 58.

(vi) The sentence imposed upon the applicant is manifestly excessive…”


(i) The factual basis for determining the objective seriousness of the applicant’s criminality is entirely unclear.

(ii) His Honour erred by using as a factor adverse to the applicant evidence of the criminal conduct of other offenders in respect of which the applicant was not charged.

23 It is convenient, as counsel have done, to address these two grounds together.

24 It was submitted on behalf of the applicant that the outline of the objective facts in the remarks on sentence included in significant measure a statement of offences committed by others and the essence of the complaint the subject of ground (i) is that it is not clear what the factual basis was upon which the objective seriousness of the applicant’s criminality was assessed.

25 His Honour did not in the remarks on sentence limit himself to recording the details of the offences committed by the applicant. Whilst this involves some repetition of facts previously outlined in this judgment, it is convenient to record some part of his Honour’s sentencing remarks for the purposes of addressing these first two grounds (ROS 2-4):

“On 30th August 2000, Miss C was raped by 14 men in a series of orgiastic attacks. The first such rapes occurred in toilets in Marion Street Bankstown. Here she was sexually assaulted by four men, one of them assaulting her twice.
She was then passed over to another group. I am satisfied beyond reasonable doubt that this group, in a black car, had been summoned to the scene by mobile phone messages passed on by the first group of attackers. The men in this car talked with some of the attackers from the toilets and one of those attackers joined them.
There were three men in this second group. One of them, H, had been with the group which sexually assaulted her in the carpark toilets, but he had not assaulted her there. She was taken by this car to a carpark near the Bankstown Trotting Club. There, despite her protests, she was vaginally raped once and orally raped twice.
When these men finished, a two door red sedan driven by Chami, and with X, another man known only as Nike Sam and Y, as his passengers pulled up in the carpark near the Bankstown Trotting Club. Y was the front seat passenger.
There is clear evidence that these men also arrived because of calls made on mobile phones. 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 were any doubt about this matter, in his record of interview, the offender claimed (page 2) ‘Well, I copped a phone call from X (true name deleted) he told me there’s a slut at Bankstown Trotting Club’.
In my opinion, there is not the slightest doubt that the offender, Chami, knew before he arrived with X, Y and the other man at the Bankstown Trotting Club carpark, that the complainant had already been sexually assaulted by numerous men in toilets at Bankstown and in a black car at the carpark. Of course, he may not have been aware of every detail of these assaults.
She was persuaded by false representations by Chami that these men would take her home, and to get into the red car. However, what happened was the red car was driven to an area near Chami’s house. He got out and got back in.
On this journey the back seat passengers, X and Nike Sam penetrated her vagina with their fingers and made her touch their penises. They also touched her on the breasts. Y looked back to observe this activity, all of which was non consensual. Clearly, the detention of Miss C commenced from the time that she was in the car and the back seat passengers started to assault her.
The car stopped at a service station. Y, who was the front seat passenger got out. Miss C thought she would take the opportunity presented by his absence to do the same but when she attempted to get out, Chami pulled something from the glove box of the car, which she thought was a gun, held it to her head and said:
‘Don’t move, bitch, or you’re dead.’
At the time, she was attempting to climb between the two front seats to get out of the car. Because of this threat she did not get out. She must have suffered great fear and distress at this point and perhaps have wondered whether she would be killed.
Chami drove the car on to an industrial estate at Chullora. At the industrial estate, the male passengers got out, but prevented her from getting out by holding the two doors shut from the outside.
Chami then got in the back seat, unzipped his pants, sat next to her, pulled his penis out and put a condom on it. She said ‘you’re not going to do it too?’ to which he replied: ‘Fuck me!’
He then pushed her on her back, pulled up her skirt, pulled down her underwear completely and spread her legs as far as possible and then had vaginal intercourse with her. She was crying all the time. By the time this assault occurred, she had been vaginally raped 3 times and orally raped 5 times. 7 men had been involved.
It is difficult to think of a more serious rape offence than this one, committed as it was after the perpetrator, knowing she had been previously raped by a number of men, had threatened her by what seemed to be a gun held to the head of the complainant and whilst he was in company of 3 other men, who, to his knowledge, intended also to rape her. Each of them then did so.
Chami stayed out of the car, whilst these rapes occurred. When the next black car arrived, he then drove his passengers away from the scene.”

26 The Crown submitted that a reference to such facts as were limited solely to the role of the applicant would have presented an incomplete and unintelligible picture and that in addition the knowledge that the applicant had as to what had previously happened to Ms C was relevant to the gravity of the offences which he committed. That Crown submission is of substance and it was plainly relevant to consider the applicant’s knowledge, such as was proved, as to the nature of Ms C’s ordeal prior to the applicant first encountering her.

27 There was evidence to support a finding that the applicant was aware that Ms C had been sexually abused by others before he arrived on the scene. When interviewed by the police (see Exhibit C33), the applicant explained why it was that he went to the Bankstown Trotting Club:

“Well I copped a phone call from Bill Skaf, he told me there’s a slut at Bankstown Trotting Club where you said. I said to him, ‘All right’. he said, ‘Can you just take me down there and take me somewhere?’ I said to him, ‘Yeah, no worries.’ I ended up taking him down to where she was at, which there was [H] there and two other youths that I haven’t seen before…”

And later in the same interview: “All I heard was that they had this girl and I heard she was going through one guy and another.” The applicant went on to identify the source of knowledge as being Bilal Skaf, the brother of Mohammed Skaf.

28 There was the evidence earlier referred to that following the applicant’s arrival at the scene he and the other occupants of his car engaged in lengthy conversation with the occupants of the black car in which Ms C had been brought to the trotting club. The judge was entitled to conclude that those in the red car had been given an overall appreciation as to what had earlier occurred at Marion Street by those in the black car which had transported Ms C from Marion Street to the trotting club. Then there was the behaviour of the backseat passengers of the car as the applicant drove to the industrial estate that must have added to his awareness. Finally, there were the words of Ms C (para 13 above): “You’re not going to do it too?” to remind him of what had occurred.

29 Complaint has been made that the judge referred to a time span of six hours, and there was no evidence that the applicant’s encounter with Ms C lasted six hours. What his Honour said in the context of considering this submission advanced on behalf of the applicant was this (ROS 8):

“Whilst it is true that he committed one sexual assault offence only, I am required, in my opinion, to consider the surrounding circumstances of it and in some respects they are worse than the circumstances in the case of Hajeid and of AEM, particularly since many more men were involved, the time span of six hours is much greater and each participant in the events of 30 August was taking part in a plan which involved passing the helpless victim from hand to hand and group to group.”

30 The period of detention relevant to the offence charged against the applicant under s 90A of the Crimes Act was not six hours but when the sentencing remarks are read as a whole, it does not appear that his Honour proceeded on the basis that the detention by the applicant was of such duration. It was not irrelevant for his Honour to put the applicant’s offences in their context however, and the remarks on sentence reflect that the judge was mindful that he was to sentence the applicant only in respect of the two offences of which he had been convicted:

“On this one night there was in truth serial gang rape, although Chami was charged with only two offences and cannot be punished for anything more than that of which he was convicted.”

31 The above is a correct statement of principle and it has not been established that the judge departed from it.

32 Grounds (i) and (ii) fail.

(iii) His Honour erred in finding that the offence of unlawful detention commenced when the complainant was sexually assaulted in the back seat of the applicant’s car by Bilal Skaf and the unidentified male (and involved the use of a gun).

33 It was submitted that the judge’s assessment of the objective seriousness of the offence of unlawful detention disclosed error because it involved a finding that the applicant was aware of and culpable for the offences committed by others, that is to say the offences committed by the two men who were in the back of the car. Moreover, as was conceded at the trial by the Crown, it was not established beyond reasonable doubt that what was produced by the applicant was a gun and it was submitted the judge was in error in proceeding on the basis this had been proved. (The expression of ground (iii) in the applicant’s submissions differs from its expression in the grounds of appeal where the gun is not mentioned.)

34 At the trial the Crown submitted in final address (T 1104.52):

“That [Ms C] was lured and enticed into the car and held there for the purposes of the sexual advantage of all three [referring to the applicant and the other men charged on the same indictment, namely Ghanem and Bilal Skaf].

35 When his Honour summed up, he defined the detention in different terms:

“But it was at a service station when she attempted to get out and was prevented from getting out that the detention started there. She was held from that point, she could not get out of the car. Now, from that point to the time that the people in the red car handed her over to the next group, the Crown case is the three of them were detaining her.”

36 Then, in his sentencing remarks the judge said:

“Clearly the detention of Miss C commenced from the time she was in the car and the backseat passengers started to assault her.” (ROS 3)

37 The judge referred in his sentencing remarks to the offences committed by the backseat passengers in the course of the journey and the behaviour of those passengers evidenced the intention to obtain a sexual advantage. The judge traced in his remarks on sentence set out above what happened after the car stopped at the service station and until the time the wrongful detention came to an end.

38 It is submitted on behalf of the applicant that it is apparent from the description of the assaults committed by the backseat passengers that the judge imputed accessorial liability for those offences although they were not charged against the applicant.

39 The conclusion is not justified that the judge punished the applicant on the basis of accessorial liability for what the backseat passengers did. There is nothing in the sentencing remarks to indicate when the applicant came to be sentenced for the wrongful detention that the sentencing judge was influenced by any improper considerations. It was proper for the judge to approach the unlawful detention offence in the way that he did. The evidence established that, contrary to Ms C’s belief when she entered the car, the applicant did not intend to take her home and Ms C was prevented from leaving the car until her eventual release at Chullora. The evidence reviewed established the relevant elements of the unlawful detention.

40 Did the judge proceed in error upon the basis that it had been proved that the object with which the applicant threatened Ms C was a gun? There are a number of references in the remarks on sentence to the object which the applicant produced from the glove box during the course of the unlawful detention:

(i) at ROS 3 - “Chami pulled something from the glove box of the car which she thought was a gun”;

(ii) ROS 4 - “[the applicant] had threatened her by what seemed to be a gun…”;

(iii) ROS 7 - “Additionally, he threatened her with what appeared to be a gun”;

(iv) ROS 13 - “he threatened her with what she believed to be a gun”;

(v) ROS 15 - “the detention was accompanied by a threat of death reinforced by production of what seemed to the complainant to be a weapon”;

(vi) ROS 16 - “what makes the present case worse than Regina v AEM and others, arises from the circumstance that Chami threatened the victim with a gun”;

(vii) ROS 17 - “I cannot overlook that he also threatened her, apparently with a gun.”

41 Clearly, Ms C believed that she had been threatened with a gun and it was appropriate for his Honour to approach his task on this basis. Other than in the reference on ROS 16 the judge was alert to draw the distinction between Ms C’s perception that a gun had been produced and the fact of production. The Court’s attention has been drawn to what was said by his Honour during oral submissions made on 9 August 2002, which was also the date upon which these sentences were imposed. There was this exchange appearing at pp 3-4:

“HIS HONOUR: I’ve looked at all this material. Before you start there are just one or two things I think I should ask the Crown and then I can get you to deal with them. In this matter there was evidence from Miss [C] that the offender held a gun at her head.
CUNNEEN: Yes, your Honour, or something that she perceived felt like a gun although she conceded she didn’t see it.
HIS HONOUR: No gun was found?
CUNNEEN: No.
HIS HONOUR: I think that the most I could find really was that he held something at her head which she believed to be a gun, it might have been something else, and made threats to her which she gave evidence of.
CUNNEEN: Yes. ‘Don’t move, bitch, or you’re dead.’
HIS HONOUR: That’s right.
CUNNEEN: So that must have augmented the fear that what was being held to her head…
HIS HONOUR: But I don’t think I can actually find he had a gun as such.
CUNNEEN: No, I agree with that, your Honour.”

42 In the circumstances, the conclusion is not called for that the judge proceeded to sentence the applicant on the mistaken belief that the evidence established that the applicant had in fact threatened Ms C with a gun. Most of the references from the remarks on sentence earlier set out reflect the distinction between Ms C’s perception and the absence of proof as to the nature of the object.

43 Ground (iii) fails.

(iv) His Honour erred in finding that the applicant’s plea of not guilty and the manner of the conduct of the trial was an aggravating feature for the purpose of sentence.

44 The Crown acknowledged that if his Honour did treat as a matter of aggravation the plea and the conduct of the defence, then this was an error and, indeed, a serious one: see Siganto v The Queen (1998) 194 CLR 656.

45 There are two passages in the remarks on sentence which, it is submitted, manifest the error to which this ground is directed.

46 At ROS 10 his Honour, having remarked upon the applicant’s exercise of his right to give no evidence at the trial, referred to what he had told the police, including the circumstances in which he then claimed to have had oral intercourse with Ms C. His Honour then went on to say this:

“His case meant that he was alleging the complainant was a liar and he was an innocent man having a bit of consensual sex from a willing partner. The case was false and was calculated to increase the distress of the complainant. He has shown a distinct lack of remorse.”

47 Later, at ROS 12, His Honour referred to the victim impact statement made by Ms C:

“Miss C has made out a victim impact statement which I have considered. There is no doubt she has suffered considerably as a result of the events of this night and in particular, as a result of what Chami did to her… Clearly the giving of evidence caused her considerable anguish.
As I indicate below, I intend to take these matters into account as going to injury, loss and damage suffered by the complainant.”

48 Attention was drawn to what was said in the course of submissions on 9 August 2002, the same day as the sentences were imposed. In the course of submissions (T 8), his Honour referred to the applicant’s case at trial that Ms C was a consenting party to oral intercourse and then posed this question:

“I’m just unclear whether, if somebody runs a false case and alleges a complainant’s a liar, the way in which they conduct the case can lead to a bigger sentence. I’m just not sure.”

49 The following exchange then took place between the Crown and his Honour:

“CUNNEEN: It’s tantamount, I suppose, to denying sex, in that he denied an essential element of the principal offence, and that is consent.
HIS HONOUR: I know he denied it, but if you run a false case and allege the person, the complainant is a liar, does that make your part in it worse than somebody else who merely says ‘She’s mistaken, I wasn’t there’?
CUNNEEN: Well yes, your Honour, the Crown would submit that that is a further feature.
HIS HONOUR: Are you aware of any cases where any superior court has said that a person who alleges a rape victim is a liar should get a heavier sentence?
CUNNEEN: I’m not, your Honour, although I’ve seen it referred to in passing that, for example, this was not simply a mere denial it was a positive assertion that the complainant was untruthful, but I have never seen that used as a reason to increase a sentence.
HIS HONOUR: I’m not sure it could lead to an increase in sentence. It may have something to do with a lack of remorse or something of that nature.
CUNNEEN: That’s probably right…”

50 Had the applicant expressed or demonstrated genuine remorse, then this would have been a feature to have been taken into account in his favour. The Crown has submitted that the observation first extracted from the sentencing remarks (para 46 above) amounted to no more than an expression that the applicant was not entitled to any favourable consideration for remorse. Whilst his Honour made an observation that the conduct of the defence was calculated to increase the distress of Ms C, the Crown submitted that viewed in context his Honour was not intending to convey that the conduct in defending the proceedings was an aggravating feature.

51 As to the second of the extracts from the sentencing remarks relevant to this ground of appeal, it is submitted by the Crown that this was an observation following consideration of the impact of the crime upon her. In a victim impact statement, the victim had referred to the trauma of court proceedings. The Crown submitted that what the judge said in stating that the giving of evidence caused her considerable anguish should properly be regarded as no more than an observation that followed the contemplation of the victim impact statement. The Crown relied upon the remarks prior to sentence on 9 August 2000 referred to earlier as disclosing that the judge correctly recognised that the conduct of the trial could not lead to an increase in sentence but could only evidence absence of remorse.

52 There are further passages in the remarks on sentence which bear upon this ground. Having indicated that he intended to take “these matters” into account as going to injury, loss and damage suffered by Ms C (see ROS 12, para 47 above), his Honour proceeded at ROS 14 to say this:

“It is also important to mention here, that sentence is being imposed on an offender, who despite a strong Crown case against him, chose to plead not guilty. That is his right and there can be no increase in sentence because he has done that. But it does mean that there can be no discount for a plea of guilty since he pleaded not guilty and maintains that plea to this day.”

53 That statement last recorded was unquestionably correct, but his Honour then returned to the subject matter of the earlier remarks at ROS 12 set out above, and said this:

“I mentioned earlier that I intend to take into account the harm and hurt suffered by the complainant, as she revealed it in her victim impact statement. In my opinion, she suffered greatly from the ordeal inflicted on her by the prisoner.”

54 The victim impact statement of Ms C addressed at some length the nature and extent of the harm Ms C had suffered and which was attributed to the applicant’s criminality. It included the following:

“I had to endure the trauma of court when he denied his actions and my suffering. I cannot describe the pain of giving evidence…”

55 At ROS 12 his Honour had made the observation that the giving of evidence caused Ms C “considerable anguish” and his Honour proceeded to state the intention to take “these matters” into account. “These matters” in context must be taken to include the giving of evidence.

56 Whilst his Honour correctly determined that the sentence could not be increased because the applicant pleaded not guilty, his remarks lead to the conclusion that he considered that the anguish occasioned to Ms C by the need for her to give evidence was an aggravating factor for sentencing purposes. In Siganto it was made plain that the distress occasioned to a complainant by having to give evidence could not be treated as an aggravating circumstance for the purposes of sentencing.

57 In Siganto the High Court approved the expression of principle by the Victorian Court of Criminal Appeal in R v Gray (1977) VR 225 at 231:

“It is impermissible to increase what is a proper sentence for the offence committed, in order to mark the court’s disapproval of the accused’s having put the issues to proof or having presented a time wasting or even scurrilous defence.”

58 Since Siganto v The Queen there can be no question but that an accused person is not to be penalised for sentencing purposes for the manner in which he has conducted his defence, even though this may lead to a victim’s anguish in having to give evidence and to be subjected to distressing cross examination.

59 In this case the judge’s remarks on sentence indicate that a factor that he intended to take into account for sentencing purposes was the distress occasioned to Ms C in giving evidence. In so doing, the judge fell into error; so this ground has been established in part. However his Honour did not make the further error to which this ground is also directed, of treating the applicant’s plea of not guilty as such as an aggravating feature.

(v) His Honour erred in determining that the objective criminality of the applicant’s conduct invited the imposition of heavier penalties than were imposed on the offenders in R v AEM Snr ; R v KEM ; R v MM [2002] NSWCCA 58.

60 The remarks on sentence make it plain that the judge was influenced when determining appropriate sentences by the decision of the Court of Criminal Appeal in R v AEM Snr; R v KEM; R v MM [2002] NSWCCA 58. His Honour considered the decision to be important

“because it gives guidance on the correct principles to apply in sentencing for offences of sexual intercourse without consent in circumstances of aggravation, where the aggravation alleged is that the offence was committed in company, where the offenders were young and the victim was young.”

61 However, his Honour went on to point to what he perceived to be significant factual differences between that case and the case before him.

62 In AEM the victims were two sixteen year old females who accepted the offer made by the offenders of a lift home early one morning after the victims had found that the trains had stopped running. The offenders took them to the home of AEM Snr and KEM. The victims were forcibly detained over a four hour period and were subjected to a series of sexual assaults of the most serious kind.

63 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.

64 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 and she was forced to perform fellatio on a number of occasions.

65 A knife was produced against the other victim who was detained in another room. AEM and MM had vaginal intercourse with her.

66 The judge regarded Chami’s case as worse than AEM because Chami threatened the victim and then raped her “knowing that seven men had earlier raped her and that others intended to rape her also”.

67 It was submitted on behalf of the applicant that the following features made AEM a more serious case:

· a knife was used

· threats to kill were made during intercourse

· two episodes of simultaneous sexual assaults against the one complainant;

· the awareness that the complainant had already been sexually assaulted by somebody else;

· the awareness that one complainant was menstruating at the time of the offences;

· the extended period of detention.

68 The Crown, on the other hand, pointed to features of the applicant’s case going to its gravity:

· Ms C was alone and was being passed from hand to hand;

· the applicant threatened Ms C with what Ms C believed to be a gun. He pointed it at her head, saying “Don’t move, bitch, or you’re dead”;

· the commission of the applicant’s offences took place when the applicant was aware that others had sexually assaulted her and that there were still others who were likely to do so;

· there was an abuse of trust in not driving Ms C home after Ms C was enticed to enter his car;

· this was not an opportunistic encounter;

· there was no plea of guilty, unlike the case of AEM, and the only remorse expressed was to the psychologist.

69 Points of distinction can always be drawn between cases, and it has to be recognised that reasonable views may differ when the gravity of the objective circumstances of one case are being compared with another. This Court is not satisfied that error has been demonstrated in the approach the judge took in addressing the distinguishing features between AEM and the case of the applicant. The outcome of this appeal is not to be determined by such a comparison, but more directly by whether the sentences imposed upon the applicant were manifestly excessive, and to this remaining ground the Court now turns.

(vi) The sentence imposed upon the applicant is manifestly excessive having regard to the facts and the circumstances of the case relevant for the purpose of determining sentence and a lesser sentence is warranted in law: s 6(3) Criminal Appeal Act.

70 It has to be recognised that the sentence imposed for the offence against s 61J of the Crimes Act was a very stern sentence, representing seventy-five percent of the maximum penalty provided for by the legislature for this class of offence. However, this was an offence that warranted very stern punishment. Whether the applicant knew the precise details as to which offenders had previously raped Ms C vaginally, and which offenders had previously subjected her to oral intercourse, the judge had properly concluded that the applicant knew that a number of men had had sexual intercourse with Ms C against her will before Ms C entered the applicant’s car, and the applicant proceeded to have intercourse with her after threatening her life at the point of an object he had drawn from the glove box of his car and which Ms C believed to be a gun. The applicant had intercourse in his car whilst his companions held the doors closed to prevent Ms C’s escape. Having regard to all the objective circumstances, and notwithstanding consideration of the applicant’s subjective circumstances, this Court considers that considerations of deterrence and denunciation render the penalty imposed for the offence under s 61J of the Crimes Act appropriate.

71 Further, the Court considers that the penalty for the offence against s 90A of the Crimes Act was correct, and that the extent of the accumulation in the structuring of the sentences imposed was proper. Ms C was lured into the applicant’s vehicle by the false assurance she was about to be driven home, but in fact for the purposes evidenced by subsequent events that occurred in the applicant’s vehicle. The gravity of the unlawful detention offence was aggravated by the applicant’s awareness of Ms C’s prior ordeal and by his betrayal of the trust placed upon him by Ms C in the circumstances.

Conclusion

72 Whilst the judge erred in law in the expression of his intention to take into account the distress associated with the need for Ms C to give evidence, it is by no means clear that he did increase the sentence imposed upon the applicant by reason of any such consideration. The applicant’s application for leave to appeal was entertained by this Court as well as applications by Bilal Skaf [2005] NSWCCA 297, Mohammed Skaf [2005] NSWCCA 298, Belal Hajeid [2005] NSWCCA 262, H [2005] NSWCCA 282, Mahmoud Sanoussi [2005] NSWCCA 322 and Mohamad Sanoussi [2005] NSWCCA 323. It is to be noted that the judge took as a starting point a sentence of fifteen years for each of the offenders, except the Skaf brothers, for each of the offences under s 61J, committed either on 10 August 2000 or 30 August 2000. The first of the offenders to be sentenced was Belal Hajeid, on 14 June 2002. He was sentenced to a head sentence of fifteen years for each of three offences committed on 10 August 2000. The offences were offences of oral intercourse. The starting point for the sentences imposed upon the Sanoussi brothers for the offences against s 61J was also fifteen years imprisonment. Mahmoud Sanoussi, who was sentenced after the applicant on 6 September 2002, was sentenced to a head sentence of eleven years three months for penile-vaginal intercourse in the toilet block at Marion Street, after a twenty-five percent discount for his plea of guilty. Mohamad Sanoussi, dealt with on the same day as his brother, was similarly sentenced for his offence of oral intercourse at the same place and on the same date, and was given similar punishment for his three offences under s 61J committed on 10 August 2000. Like his brother, he enjoyed the benefit of a twenty-five percent discount for having pleaded guilty. H was sentenced on 23 August 2002. He also pleaded guilty and was sentenced to eleven years three months for offences committed against s 61J on 10 August 2000.

73 So it is that his Honour seems to have taken the same starting point for offences committed by other offenders under s 61J, when the distress occasioned to Ms C by the need to give evidence was not a sentencing consideration. It is not evident that the intention expressed by the judge in the present case that he would take into account Ms C’s distress ultimately influenced the sentence imposed upon the applicant at all. However, ultimately, the issue to be considered is whether a more or less severe sentence is warranted in law and should have been passed: s 6(3) of the Criminal Appeal Act.

74 This Court is of the opinion that no less severe a sentence than that imposed upon the applicant is warranted.

75 Hence, the Court makes the following orders:

1. Leave to appeal is granted;

2. The appeal is dismissed.

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