R v Djait, Samadi

[2006] NSWDC 71

CITATION:	R v Djait, Samadi [2006] NSWDC 71
HEARING DATE(S):	23/1/06 - 24/3/06
JUDGMENT DATE:	30 June 2006
EX TEMPORE JUDGMENT DATE:	06/30/2006
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Tupman DCJ at 1
DECISION:	Chebli Djait; 1. Prisoner is convicted for each count he is charged with on the indictment.; Re Counts 1, 2, 3; 1. Prisoner is sentenced to term of imprisonment of 8 years commencing on 19/10/04 and expiring on 18/10/12.; 2. Non parole period of 5 years commencing on 19/10/04 and expiring on 18/10/09.; 3. Parole period of 3 years commencing on 19/10/09 and expiring 18/10/12.; Re Count 4; 1. Prisoner is sentenced to term of imprisonment of 8 years commencing on 19/10/05 and expiring on 18/10/13.; 2. Non parole period of 5 years commencing on 19/10/05 and expiring on 18/10/10.; 3. Parole period of 3 years expiring on 18/10/13.; Re Counts 5, 6; 1. Prisoner is sentenced to term of imprisonment of 8 years commencing on 19/10/06 and expiring on 18/10/14.; 2. Non parole period of 5 years commencing on 19/10/06 and expiring on 18/10/11.; 3. Parole period of 3 years commencing on 19/10/11 and expiring on 18/10/14.; Re Counts 7, 8; 1. Prisoner is sentenced to term of imprisonment of 8 years commencing on 19/10/07 and expiring on 18/10/15.; 2. Non parole period of 5 years commencing on 19/10/07 and expiring on 18/10/12.; 3. Parole period of 3 years expiring on 18/10/15.; Re Counts 9, 10, 11; 1. Prisoner is sentenced to term of imprisonment of 8 years commencing on 19/10/08 and expiring on 18/10/16.; 2. Non parole period of 5 years commencing on 19/10/08 and expiring on 18/10/13.; 3. Parole period of 3 years expiring on 18/10/16.; Re Count 15; 1. Prisoner is sentenced to term of imprisonment of 8 years commencing on 19/10/09 and expiring on 18/10/17.; 2. Non parole period of 5 years commencing on 19/10/09 and expiring on 18/10/14.; 3. Parole period of 3 years commencing on 19/10/14 and expiring on 18/10/17.; Re Sexual assault offences, counts 12, 13, 14; 1. Prisoner is sentenced to term of imprisonment of 9 years commencing on 19/10/10 and expiring on 18/10/19.; 2. Non parole period of 6 years commencing on 19/10/10 and expiring on 18/10/16.; 3. Parole period of 3 years commencing on 19/10/16 and expiring on 18/10/19.; Adel Samadi; 1. Prisoner is convicted for each count he is charged with on the indictment.; Re Counts 1, 2, 3; 1. Prisoner is sentenced to term of imprisonment of 8 years commencing on 20/10/04 and expiring on 19/10/12.; 2. Non parole period of 5 years commencing on 20/10/04 and expiring on 19/10/09.; 3. Parole period of 3 years expiring 19/10/12.; Re Count 4; 1. Prisoner is sentenced to term of imprisonment of 8 years commencing on 20/10/05 and expiring on 19/10/13.; 2. Non parole period of 5 years commencing on 20/10/05 and expiring on 19/10/10.; 3. Parole period of 3 years expiring on 19/10/13.; Re Counts 5, 6; 1. Prisoner is sentenced to term of imprisonment of 8 years commencing on 20/10/06 and expiring on 19/10/14.; 2. Non parole period of 5 years commencing on 20/10/06 and expiring on 19/10/11.; 3. Parole period of 3 years commencing on 20/10/11 and expiring on 19/10/14.; Re Counts 7, 8; 1. Prisoner is sentenced to term of imprisonment of 8 years commencing on 20/10/07 and expiring on 19/10/15.; 2. Non parole period of 5 years commencing on 20/10/07 and expiring on 19/10/12.; 3. Parole period of 3 years expiring on 19/10/15.; Re Counts 9, 10, 11; 1. Prisoner is sentenced to term of imprisonment of 8 years commencing on 20/10/08 and expiring on 19/10/16.; 2. Non parole period of 5 years commencing on 20/10/08 and expiring on 19/10/13.; 3. Parole period of 3 years expiring on 19/10/16.; Re Count 15; 1. Prisoner is sentenced to term of imprisonment of 8 years commencing on 20/10/09 and expiring on 19/10/17.; 2. Non parole period of 5 years commencing on 20/10/09 and expiring on 19/10/14.; 3. Parole period of 3 years commencing on 20/10/14 and expiring on 19/10/17.; Re Sexual assault offence, count 16; 1. Prisoner is sentenced to term of imprisonment of 9 years commencing on 20/10/10 and expiring on 19/10/19.; 2. Non parole period of 6 years commencing on 20/10/10 and expiring on 19/10/16.; 3. Parole period of 3 years commencing on 20/10/16 and expiring on 19/10/19.
CATCHWORDS:	drink spiking, unlawful administration of stupefying drug, s 38 Crimes Act, s 61I Crimes Act, Clonazepam, Rivotril, coincidence evidence, theft, sexual assault.
LEGISLATION CITED:	s 38 Crimes Act s 61I Crimes Act
PARTIES:	Crown Chebli Djait Adel Samadi
FILE NUMBER(S):	05/11/0732
COUNSEL:	CR: Ms N Adams FW Mr Djait: Mr D Stewart FW Mr Samadi: Dr B Glennon
SOLICITORS:	CR: Ms M Schattiger

- 38 -

JUDGMENT

SENTENCE

1 The prisoners Chebli Djait and Adel Samadi are before me today for sentence following their convictions by a jury on 24 March 2006, after a trial lasting seven weeks. They were arraigned jointly on indictment on 1 February 2006.

2 The prisoner Mr Djait faced fifteen counts in that indictment, and the prisoner Mr Samadi faced thirteen counts. Of these counts, twelve were jointly charged and were all offences contrary to s 38 of the Crimes Act, namely charges that on the specified dates and places they unlawfully administered a stupefying drug, namely Clonazepam, to a named person with the intention of enabling each of them to steal property from that named person. For ease of reference in these remarks on sentence I will refer to these twelve jointly charged s 38 counts as the drink spiking charges.

3 Mr Djait faced a further three separate charges against him alone, which are counts 12, 13 and 14 in the indictment, and they are three separate counts of sexual intercourse without consent occurring on or about 18 October 2004 at Peakhurst involving the complainant named in each of those counts. He was convicted by the jury on these three counts, as well as being convicted of the twelve jointly charged drink spiking counts.

4 The prisoner Mr Samadi also faced one separate charge against him alone. It is count 16 in the indictment, also being a count of sexual intercourse without consent, occurring on 19 October 2004 at Sydney, involving the complainant named in that count. There was an alternative count of indecent assault to that charge but he was convicted by the jury of the primary charge of sexual intercourse without consent.

5 Thus I am to sentence Mr Djait for twelve counts of drink spiking and three counts of sexual intercourse without consent, and Mr Samadi for twelve counts of drink spiking and one count of sexual intercourse without consent.

6 The twelve drink spiking counts, as I said, are brought contrary to s 38 of the Crimes Act, and as such each carries a maximum penalty of twenty-five years imprisonment. All of the sexual intercourse without consent charges are brought contrary to s 61I of the Crimes Act and carry a maximum penalty of fourteen years imprisonment. For these latter sexual intercourse offences there is a standard non parole period of seven years imprisonment pursuant to s 45B of the Crimes (Sentencing Procedure) Act.

7 I now turn to the facts on which I sentence the prisoners. Each of the accused pleaded not guilty to all charges at trial and each of them gave evidence at trial denying the allegations and charges. There was no other evidence called by either accused at trial except for his own. The jury clearly did not accept the evidence of either of the accused and by their convictions I accept must have accepted the overall thrust of the Crown case, including accepting in large part the evidence given by each of the victims.

8 The Crown case in relation to some of the essential elements for some of the counts was circumstantial, but relied in all counts to some extent on the jury’s accepting the observations each of the victims made about physical symptoms and feelings experienced by them, and memory loss experienced by them over a period of time, in all cases not long after each of them had been in company with both of the accused, drinking alcohol with them. In some cases there was medical evidence to prove that the relevant drug Clonazepam had been ingested by one or other of the victims. In some cases there was none. Following rulings made by me before the jury was empanelled in this trial, the Crown was also permitted to rely on the evidence in each count in relation to each of the other relevant counts in the indictment on the basis of the distinct similarities, in a way that is referred to in summary as coincidence evidence. There was other circumstantial evidence relevant to one or other charge, such as the finding of property stolen from or connected to the victims, in the possession of one or other of the prisoners.

9 In each case however, the evidence of each of the victims was important if not crucial to the Crown case, particularly in relation to the physical sensations they felt, and the guilty verdicts must indicate that the jury accepted the evidence of each of the victims in large part. With those observations in mind then I propose to recite the facts on which I sentence the prisoners in relation to each of the counts, they being on the basis of the evidence which emerged at the trial, taken together with the inferences that must be available from the guilty verdicts returned by the jury.

10 I will deal first with the twelve joint drink spiking charges. Whilst they are in fact twelve separate charges, in fact they represent six groups of offences and I will set out the facts on that basis.

11 Incident 1 is represented by counts 1, 2 and 3 in the indictment, and occurred on 13 October 2004. The relevant facts are on that date the first two victims, Tracey Vo and Pia Donaldson were at the Pontoon Bar at Darling Harbour at about 8.30 in the evening. Ms Donaldson was a tourist from Western Australia and was a friend of Ms Vo, who was in fact a Sydneysider. Ms Donaldson was due to return to Perth the next day, and the two friends went out for a drink that night. Whilst at the Pontoon Bar they met the third victim James Andrew, who was a visitor to Sydney from Adelaide, attending a work conference and who had also gone to the Pontoon Bar for a drink that night. Whilst they were all talking to each other, the two prisoners approached the group and introduced themselves as Andy and Dillon and started to talk and socialise with the three victims. Mr Andrew gave one or both of the prisoners his business card. Mr Samadi went to the bar and bought drinks for the three victims. Ms Vo started to feel a bit drowsy after these drinks but did not say anything about that. About midnight one or other of the prisoners suggested that the group move to another location to continue drinking. The three victims began to walk from the Pontoon Bar with the prisoners but not long afterwards parted company with the two prisoners. There was conflicting evidence in the trial about the reason for this, but it seems to me that it is irrelevant on sentence and it is unnecessary to resolve that conflict. In fact all three victims separated from the prisoners and ultimately ended up in Mr Andrew’s hotel room where each of them passed out. Each of these three victims had either completely lost or had patchy memory of events from about the time they left the Pontoon Bar and none of them had any real memory of going to Mr Andrew’s hotel room.

12 Ms Vo and Ms Donaldson woke up the next morning and left whilst Mr Andrew was still asleep. Mr Andrew ultimately woke up but later than he intended. In the case of each of them they realised that they had lost memory of part of the previous night and felt physical symptoms, including feeling unwell, disoriented and hung over, albeit in circumstances where the amount of alcohol they had knowingly consumed was not sufficient to produce that degree of hangover. Ms Donaldson went back to Perth that day in accordance with her plan, and Mr Andrew shortly afterwards returned to Adelaide. None of them reported any of these symptoms to authorities until after each of the accused had been arrested for some of the later offences and there was some media publicity about the allegations that they had been spiking the drinks of tourists in the Sydney CBD area. Ms Vo, who was herself a journalist at the time, saw that media release, recognised some of the symptoms she had suffered and then reported the incident surrounding herself to police. Because of the lateness of the report however, it was not possible to conduct blood or urine tests. In relation to this group of charges the jury accepted that Mr Andrew’s business card was found in the possession of the prisoner Mr Samadi on his arrest. Ms Vo identified each of the prisoners at a photo identification parade some time after their arrest. There was no other identification of either accused for these three charges.

13 The accused Mr Djait did not dispute that he was present with each of these victims and Mr Samadi on this evening, but denied any drink spiking or any knowledge that Mr Samadi was behaving in such a way. The prisoner Mr Samadi denied that he was present and his identity was in issue. I accept from the verdicts and evidence that in fact one or other of the accused, but in any event acting together, placed the drug Clonazepam into one or more of the drinks of these three victims at the Pontoon Bar that evening, with the intention of stealing from them. In fact they were not able to make good their intention because the three victims separated from them before they could do so. These offences were planned by the prisoners, it seems to me. The drug must have been taken to the scene in a way in which it could be administered to them easily and without suspicion. They also suggested to the group that they move away from the bar to a place which I accept would have made it easier for them to steal from the victims with fewer witnesses.

14 I now turn to the facts involving incident 2, which is count 4. This occurred shortly after the victims in incident 1 parted company with the prisoners and in the same general area. The victim Mr Stephen Mogg had been out drinking for a few hours before midnight on 13 October 2004. He lived at Pyrmont and was making his way home, walking through Cockle Bay near the Pontoon Bar at about midnight. In that general area he was approached by the two prisoners and there was some conversation between them which led to Mr Mogg’s agreeing that the two prisoners could come to his unit and have a few drinks. I accept that more probably than not the two prisoners pretended to Mr Mogg that one of them was homosexual after ascertaining that Mr Mogg himself was homosexual. When they arrived at his unit Mr Mogg opened a bottle of wine and poured three glasses. There was a wealth of evidence in the trial about the comings and goings in various rooms at the unit from then on, which it seems to me is not necessary to resolve to the extent that there is any conflict, but I accept from the verdict that one or other of the accused, but acting together, then placed some Clonazepam into Mr Mogg’s glass without his knowledge and he drank some from it. Mr Mogg had already drunk a fairly substantial quantity of alcohol throughout the evening before he met the prisoners, which must have been obvious to each of them. Mr Mogg then noticed that the contents of his glass appeared cloudy and he threw the rest down the sink. Not long afterwards he lost consciousness and woke the next morning to find the prisoners gone and that a quantity of property had been stolen from him, including a large number of items of jewellery, a Tag Heuer watch, a Sony Play Station, an IBM laptop computer, a digital camera, credit cards, cash and clothing, including a leather jacket. The total value of these items I accept was about $17,500. Mr Mogg realised what had occurred and was experiencing symptoms similar to those of the earlier three victims and contacted police. He was taken to hospital where blood and urine samples were taken indicating the presence of the drug Clonazepam in his blood. Fingerprints of the prisoner Mr Djait were found in Mr Mogg’s premises and there was testing of a sock located on the floor of the lounge room which produced DNA, which matched the DNA of the prisoner Mr Samadi. When the prisoner Mr Djait was arrested he was wearing Mr Mogg’s watch and leather coat, and after his arrest, police conducted a search of Mr Djait’s home and there found Mr Mogg’s Play Station and digital camera. The other stolen property in relation to this charge has not been recovered so far as I understand the evidence. In addition, Mr Mogg’s stolen credit card was used to pay for a taxi fare from Ultimo to the Riverwood area where Mr Samadi lived at the time, on the morning of 14 October 2004.

15 I accept from the jury’s verdict and the evidence in the trial that after parting company with the first three victims the prisoners then went back to the vicinity of the Pontoon Bar where they saw Mr Mogg wending his way home after a night of drinking. They engaged him in conversation and persuaded him to invite them back to his unit at Ultimo. They did so I accept with the intention of stealing from him and one or other of them, whilst they were both inside the unit, placed the drug Clonazepam in his glass of wine and then stole the property from him after he had passed out. I accept that they then caught a taxi back to the area where one or other of them lived and used Mr Mogg’s credit card to pay the fare.

16 Whilst it would appear to be the case that Mr Samadi had more direct contact with Mr Mogg than did Mr Djait at the instigation or commencement of this offence at Cockle Bay, there is no need to attempt to distinguish their roles because the jury’s verdict implies an acceptance that they were acting together in relation to this offence from the time they met Mr Mogg until after he had been drugged and his property stolen.

17 I now turn to incident 3, counts 5 and 6. On the evening of 14 October, that is the evening following the early morning where the offence had occurred with Mr Mogg, the two victims of these offences, namely Ms Kyoko Hachisu and Ms Tomoko Matsuura were walking up Liverpool Street, Sydney. They were both Japanese nationals living in Sydney temporarily at the time. The two prisoners walked past them and one or other asked if they would like a drink, suggesting the nearby Shark Bar in Liverpool Street. They agreed and went to the bar with the two prisoners. The prisoner Mr Djait introduced himself as Andy, and each of them told the two young women that they were from New Caledonia. Drinks were bought for them by one or other of the prisoners, and after drinking them the two victims began to feel tired. I accept that the two prisoners then walked them home to their nearby Darlinghurst address. Both of the victims felt unsteady on their feet during their walk home and both I accept had fragmented and blurry memories of that walk home and of actually arriving home. Ms Hachisu woke the next morning and went to work, while Ms Matsuura did not wake up until 5 the following afternoon. She noticed that her wallet was missing from her handbag and then located it lying on the ground near the door to her unit. Her credit cards and other cards were missing, as were some American Express traveller cheques worth about 20,000 Yen, and about $200 to $300 in Australian currency, as well as a gold ring which had rubies in it. She cancelled her credit card but not before it had been used for a cab charge. These two women reported the incident to police but not until 22 October 2004 after they had been told of media reports following the arrest of these two prisoners. Each of them reported physical symptoms on the day following this encounter with the two prisoners and on their walk home, very similar to all of the other victims of these offences. One of Ms Matsuura’s missing traveller’s cheques was found in Mr Djait’s premises during a search warrant conducted there after his arrest. Neither of these two women was able to identify either of the prisoners during a photo identification process, although each of them provided some recognition of a photograph of the prisoner Mr Djait.

18 There was no blood or urine analysis taken for either of these two victims because of the length of time between the offence and their reporting it to police. I accept however from the verdicts that one or other of these two prisoners acting together, spiked the drinks of each of these two young women whilst they were entertaining them in the Shark Bar that evening, and then at some stage after leaving the hotel and on the walk home, one or other of them took the wallet and other items from Ms Matsuura’s handbag, and then one or other used the stolen credit card to pay for a taxi fare almost immediately afterwards. Apart from the traveller’s cheque, as I understand the evidence, none of the other property was recovered, and there is no evidence that any property was in fact stolen from Ms Hachisu.

19 Incident 4, being counts 7 and 8. On the following evening, that is 15 October 2004, the two named victims, Ms Yuko Someya and Ms Reina Watanabe went to the Three Wise Monkeys Hotel on the corner of George and Liverpool Streets with their friend Ms Michiko Eguchi. They were all Japanese nationals on working holiday visas in Australia. They met the two prisoners there not long after midnight, in the early hours of 16 October. They had met the accused Mr Djait about a month earlier in the same hotel and he had introduced himself then as Andy. He did so again on this night and introduced the prisoner Samadi to them as well, and introduced him as Dillon. Each of the accused bought drinks for the three young women, the last being a sweet, coloured cocktail, after which all three started to experience symptoms similar to those experienced by the other victims of these offences, including full or partial memory loss. Ms Someya cannot remember how she got home that night, but I accept that shortly after 2 in the morning the prisoner Mr Samadi was seen on surveillance footage assisting her to leave the hotel. She returned alone about thirty minutes later, and her state caused such concern to the security officer at the Three Wise Monkeys Bar that he obtained permission and did in fact escort her to her nearby flat. The other victim, Ms Watanabe, had no memory of how she got home, but I accept from evidence in the trial in the nature of surveillance footage that the prisoner Mr Samadi walked her home to her flat at about 1.45 that morning. I accept that at the very least when she walked inside the door of her flat she was unsteady on her feet and not able to speak properly. Mr Samadi took her to her bedroom where he remained for about twenty minutes, and then he left the premises just after 2am, at the time I accept making a telephone call to the other prisoner Mr Djait, and then shortly afterwards returning to the Three Wise Monkeys Bar where as I have already said, he was seen leaving with Ms Someya at about 2.15.

20 Ms Watanabe woke the next day feeling symptoms of muscle weakness and nausea and in fact vomited. She discovered that her digital camera, mobile telephone and $59 in cash had been stolen from her handbag which she had with her when she entered her flat with the prisoner Samadi. I accept from the evidence and verdicts that Mr Samadi stole those items from her before he left the premises at about 2am, and in fact used her SIM card from the stolen phone to make the call to the other prisoner Mr Djait as he was leaving the premises.

21 There was no property apparently stolen from Ms Someya. All of the three women, the two named victims and Ms Eguchi spoke to police the following day and had blood and urine samples taken, which in all three detected the presence of the drug Clonazepam which none of them had taken knowingly. Ms Someya had taken some photographs of the two prisoners during the course of the evening and gave her camera to the police for processing. Ms Watanabe’s stolen camera was subsequently located in Mr Djait’s premises after he was arrested and there were found on that digital camera photographs of these two prisoners together with these three women on this evening in the Three Wise Monkeys Bar. Both Ms Someya and Ms Watanabe identified each of the accused during a picture identification parade.

22 I accept from the verdicts and evidence in the trial that one or other of the prisoners acting together put the drug Clonazepam into the drinks of these two victims whilst they were in their company at the Three Wise Monkeys Bar, and then the prisoner Mr Samadi, either during the course of walking Ms Watanabe home or after he arrived home with her, stole the property from her, but in circumstances where this was part of a plan with the prisoner Mr Djait to steal from their victims.

23 Incident 5, counts 9, 10 and 11. At about 8.45pm on the following evening, namely 17 October 2004, the three victims named in these counts went to the Shark Bar in Liverpool Street where they had a drink together and were playing pool. Because of the need to protect the identity of one of the female victims of this offence, I do not propose to read out their names in these remarks on sentence. Two of the victims were young Korean women and the third victim was a young Swiss man, all of them working and holidaying in Sydney and they were friends. As I have said that evening at about 8.45 they went to the Shark Bar together to have a drink and play pool. The two prisoners approached them there and insisted on joining their game of pool. Again Mr Djait introduced himself as Andy and said that he was from New Caledonia. The two prisoners bought drinks for them and after discovering that it was the male’s birthday the next day, bought a round of cocktails. There were photographs taken of the two prisoners with this group on a digital camera owned by one of the women. From shortly after this time the two young women started to feel symptoms similar to other victims of these offences, including a loss of coordination, weakness in their limbs and disorientation. I accept that at some stage whilst they were in company at the Shark Bar and more probably than not at the time the cocktails were bought for these three people, one or other of the two prisoners acting together, spiked their drinks with the drug Clonazepam.

24 The prisoners then suggested that the group move to another location to continue celebrating, which the three victims did, although I accept neither of the young women has any memory of events from about this time in the Shark Bar. One of the two young Korean women woke the next morning in her flat to discover that her wallet was missing which contained her Visa card, $70 in cash, a Commonwealth bankcard and her Korean driver’s licence. I accept from evidence in the trial that all three victims and the two prisoners left the Shark Bar and caught a taxi together to elsewhere, although the evidence in the trial does not allow me to make any findings one way or the other about where any of them actually went immediately after this time. I accept that at some stage or other as I have said one of the Korean women found her way to her flat and did not wake until about 7pm the next evening to find her property stolen. Either one or other of the prisoners I accept physically stole that property from her, and on balance I accept that was probably the prisoner Mr Samadi, but it is not necessary to make a definitive finding about that, and nor does it in any way affect the appropriate sentence for this offence given the jury’s verdicts based as they are on the Crown’s case that each of the prisoners was acting together as part of a joint criminal enterprise.

25 The Swiss man had no memory of events from just before midnight on 17 October when he left the Shark Bar in company with his two friends and the two prisoners. I accept he woke after noon the next day, the 18th, having made his way back to his backpacker’s hotel in Kings Cross but I accept that he had no memory of where he went in the meantime nor how he got there. He had a cut to his right eye and blood on his hands, but no memory of how that occurred. He was also suffering from symptoms similar to other victims of these offences, including dizziness and disorientation and discovered that his mobile phone had been stolen, I accept more probably than not, by one or other of these two prisoners at some stage during the evening whilst they were in company with them.

26 The other young Korean woman I accept went back to the prisoner’s Mr Djait’s unit at Peakhurst in a taxi with him, but I accept that she was already under the influence of the drug Clonazepam and only had intermittent and hazy memories of what occurred during that evening thereafter. These events are the subject of the three sexual assault convictions involving the prisoner Mr Djait alone, and I will come to them shortly. But so far as the drink spiking conviction is concerned, I accept that the two prisoners acting together spiked her drink in the Shark Bar while she was with them and her two friends, and they did so with the intention of stealing from her. In fact her digital camera was stolen from her during the course of that evening, more probably than not physically by Mr Djait and later found in his premises after his arrest. She too suffered the same or similar symptoms to other victims of these offences, including dizziness, disorientation, loss of memory, muscle weakness and inability to move.

27 These three victims reported the offences to police late on 19 October 2004, once they realised what had happened to them and they all had blood and urine samples taken which showed the presence of the drug Clonazepam in the blood of all three. The young Swiss man identified photographs of each of the prisoners during a photographic identification parade, and the young Korean woman who was the victim of the sexual assault offences also identified the prisoner Mr Djait in an identification parade. The photographs used for these two latter identification parades had in fact been taken from Ms Someya’s camera, the victim of one of the earlier offences. On that same afternoon 19 October 2004, the young Swiss man saw the prisoner Mr Djait walking past a coffee shop in Kings Cross in the vicinity of the Highfield Hotel, where in fact I accept the victim of counts 15 and 16 was at that very time being sexually assaulted by the prisoner Mr Samadi, after the prisoners acting together had spiked her drink with the intention of stealing from her. This drink spiking offence involving this victim is the sixth incident which I will come to shortly. The Swiss man contacted police immediately who attended and arrested Mr Djait at the scene. The only property recovered in relation to this fifth incident involving the three victims as I understand it, is the digital camera recovered from Mr Djait’s unit which belonged to the young Korean woman who was also sexually assaulted by Mr Djait.

28 The sixth incident is count 15. The victim of this incident was a young Swedish woman who had arrived in Sydney as a tourist on the evening of 18 October 2004. The following morning she left her hotel, the Highfield Hotel in Kings Cross to walk to the city to do some sight seeing. The prisoner Mr Samadi introduced himself to her whilst she was waiting to cross at a set of lights. He called himself Dillon and told her that he was partly French and partly Italian and spoke in French to her. She agreed to have coffee with him and continued their conversation. She gave evidence that she did not really want to stay with him for the whole day, but enjoyed the opportunity to speak in French and that he was quite persuasive. She thus agreed to have lunch with him at the Opera Bar at Circular Quay and they went there together. He bought Tequila Sunrise cocktails for her, they had lunch together, and I accept that he spoke during this time together on the telephone to the prisoner Mr Djait, who then joined them at the Opera Bar. After Mr Djait arrived, the victim and Mr Samadi walked around the Opera House and she took some photographs of the scene and of each of the prisoners. When she and Mr Samadi returned she had another drink, which I accept from the verdict was bought for her by Mr Djait. I accept that in one or other of the drinks bought for her that day, one or other or both of the prisoners had placed the drug Clonazepam. After drinking the last drink, the victim started to experience the same sort of symptoms suffered by other victims of these offences, including loss of memory, unsteadiness on her feet, dizziness and blurry eyesight. I accept that the two prisoners then went with this victim in a taxi from the Opera House to the Highfield Hotel in Kings Cross, where Mr Samadi went up to her room whilst Mr Djait remained on the street in the general vicinity of the Highfield Hotel, where as I have said he was in fact seen by the young Swiss man, the victim of one of the earlier offences, and then arrested by police at the scene.

29 Whilst in the room at the Highfield Hotel, the prisoner Mr Samadi sexually assaulted this Swedish woman, which is count 16 against him alone, which I will also refer to shortly. So far as the joint drink spiking charge involving this victim is concerned however, I accept that the two prisoners spiked one or more of her drinks at the Opera House with the intention of stealing from her, and in fact I accept Mr Samadi stole her CD Walkman from her room at the hotel and more probably than not also stole money and a credit card from her wallet which had been in her jacket at the time she was in his company in her room. None of her property as I understand the evidence has been recovered.

30 The victim of this last incident I accept went downstairs to a nearby restaurant after the prisoner left her room, for a period of time, and then returned to her room where she experienced nausea and vomited, she was unsteady on her feet and then fell asleep not waking until about 10 the next morning. She was then suffering the symptoms of nausea, dizziness and symptoms similar to other victims of these charges, and was assisted by the hotel staff to report the incident to police. She had blood and urine samples taken which showed the presence of the drug Clonazepam in her blood.

31 They are then the facts in relation to each of the twelve drink spiking charges against the two prisoners jointly. Each of them is a serious offence. Each of them is aggravated by the fact that they were committed in company. Not all of them are equally objectively serious. In some cases there was no property actually stolen. In some cases the property stolen was of small or minimal value. In one case, namely that involving Mr Mogg, the property taken was of relatively significant value. That is at least one factor which to some extent distinguishes some of the offences from others. They are all however further aggravated by the fact that they were part of a planned criminal activity by these two prisoners.

32 I accept from evidence at the trial that the two accused had been prescribed the drug Rivotril which contains the actual drug Clonazepam, by Dr Makrim Guirgis for some period of time, for a condition which curiously enough seems to have disappeared to a large extent after they were arrested and taken into custody, even though neither of them continued to receive this drug after they went into prison custody. Nonetheless, they were prescribed this drug by Dr Guirgis and there is no evidence that either of them acted in any way dishonestly to obtain these prescriptions. Each of them however had their individual prescriptions for 200 tablets filled during the time that these offences were committed, one just before the first of the offences, and the other just before the last. Each of them was found to be in possession of Tic Tac containers which contained traces of this drug at the time or shortly after their arrest, and I accept that these offered a way for them to carry around the drug so as not to arouse suspicion and to enable them to administer it easily to the victims.

33 Whilst the individual victims of these offences were randomly chosen, nonetheless I accept that they were all targeted to the extent that each of them either was or gave the appearance of being tourists who would be less likely to report relatively minor thefts in a foreign country, or in the case of Mr Mogg, gave the appearance of vulnerability, being drunk and thus an easier target. In each of these drink spiking cases I accept that the two prisoners knew what the effect of the drug would be on the victims, and knew that this too would make it less likely that they would be detected because of memory loss. Further I accept that in each case the drug was administered to the victims after they had been drinking alcohol and were enjoying themselves in social circumstances making it less likely that they would realise they had been robbed after having their drinks spiked, rather than the possibility of simply losing or having their property stolen in crowded hotels and nightclubs. The prisoners also I accept, came into the city from where they lived in Riverwood or Peakhurst, to hotels to commit these offences where tourists visited, and where I accept they knew tourists would be present. All of these factors indicate that the offences were planned by the two prisoners. The fact that they allowed themselves to be photographed in company in relation to some of these offences does not detract from this finding in circumstances where they knew or believed that the victims were all tourists, either from interstate or overseas, and thus less likely in any event to report the offences and knew what the impact of the drug would be on their ability to remember the details accurately.

34 I further accept that these are serious offences because of the risk of physical harm of a more long term nature to the victims because of the administration of this drug accumulated to the impact of alcohol. I accept from the expert evidence given in the trial that there existed, albeit somewhat remotely, but nonetheless existed the possibility that any one of these victims could have suffered fatal consequences as a result of ingesting this Clonazepam, depending on the quantity taken and the particular circumstance of any victim. Fortunately in assessing the actual seriousness of these offences none of these victims it would appear suffered any long lasting physical effect, but they were put at risk on the evidence in this trial, and that is part of the reason why these offences are treated so seriously by the legislature and why serious prison terms are called for.

35 I now turn to the sexual assault offences, dealing first with counts 12, 13 and 14 against Mr Djait alone. I accept from the jury’s verdict that after Mr Djait was with the two Korean women and the one Swiss man at the Shark Bar on 17 October, he took the victim of these three sexual offences back to his unit at Peakhurst. He knew at that stage that she was under the influence of the drug Clonazepam and he knew that this would mean that she was not in a position to give conscious or voluntary consent to sexual intercourse, nor would she be in a position to resist him. During the course of that evening or early the next morning, Mr Djait had penile vaginal sexual intercourse with her, then forced her mouth down onto his penis by holding the back of her head and forced her to have oral sexual intercourse with him, and then again had penile vaginal sexual intercourse with her. On all of these three occasions I accept the victim had some memory of the events and was aware to some limited extent about what was occurring, but her memory of it was hazy and fragmented, but I accept that because of the effect of the drug on her she was not able to resist. She did not consent and told the prisoner that. Further he would have known she was not capable of either consenting to sexual intercourse or resisting but continued in any event. Fortunately the victim of these offences was not physically injured in any way, and nor as I understand the evidence was the prisoner forceful or verbally unpleasant to her in the way that sometimes unfortunately is seen in offences of this type.

36 The following morning she left the premises and returned to her home after the prisoner paid for a taxi for her. To that extent, that is the extent to which there is no additional physical injury and no additional abuse or greater force used by the prisoner, these particular sexual assault offences are not objectively towards the worst end of sexual intercourse without consent offences. That having been said however, the fact that the prisoner knew the victim was under the influence of this drug because he himself had drugged her, albeit for a different purpose, and was incapable of resisting him, elevates the objective seriousness of these offences. In fact the victim of these offences does not and will never really know exactly what she did that night and what happened to her, and that lack of knowledge I accept has had some adverse impact on her.

37 During the evidence of this particular victim in the trial, the only occasion on which to my observation she lost her composure and broke down was when various alternative versions of sexual behaviour were being put to her on behalf of the accused Mr Djait in cross-examination, suggesting different sexual positions and the like. At that point in her evidence this victim broke down and gave an answer indicating that she was overwhelmed by hearing what she might have done in circumstances where she had no real memory of what had actually happened to her. This is an impact on this victim which is serious, albeit perhaps not amounting to an aggravating factor. It is however an indicator of the objective seriousness of these sexual intercourse offences, even though fortunately the victim was not further physically injured.

38 So far as count 16 involving the prisoner Mr Samadi is concerned, the facts involving that are that when he was in the room of the Highfield Hotel with his victim, he knew that she was under the influence of Clonazepam because he and the prisoner Mr Djait had administered that to her at the Opera Bar with the intention of stealing from her. He then took advantage of her vulnerability in her own hotel room by having penile vaginal intercourse with her. She in fact has no memory of the actual sexual intercourse and only had a hazy memory of some of the surrounding circumstances, including his taking off her clothing, seeing his pants, seeing his penis and his showing her a condom packet. The Crown’s case in relation to this sexual intercourse was circumstantial, and included finding DNA matching that of Mr Samadi in semen located on the bed sheet and sperm found on a high vaginal swab taken from the victim. The jury’s verdict is consistent with a finding that there must have been penile vaginal intercourse, at least to some extent, which is the basis on which I sentence him for this offence. There is nothing further however on which I can make any findings about the surrounding circumstances. I do accept however that the prisoner Mr Samadi knew that the victim would not have been capable of giving voluntary and conscious consent and would not have been capable of resisting because of the influence of the drug on her which he had administered. Fortunately again this victim was not physically injured in any way, and there is no other evidence in the trial of the impact of this offence on her. I accept however similarly to the other sexual assault offences that this is a serious offence because this victim, almost entirely in her case, does not and never will know exactly what occurred in her room with the accused, nor what she did. That, even absent evidence of greater physical injury, it seems to me places this offence in a relatively serious category. The prisoner as I have said took advantage of what he knew to be her vulnerability to commit this offence.

39 They then are the facts surrounding all of these sixteen counts on which I sentence the prisoners. At this stage I then turn to the subjective features in relation to each of the prisoners.

40 Each of them gave evidence at trial in relation to the facts and allegations against them, but neither gave evidence on sentence. There are various psychological and psychiatric reports tendered and other material in the nature of references, certificates and the like. So far as the prisoner Mr Samadi is concerned none of those reports however are any more recent than one commissioned at about the time of the trial and in relation to the prisoner Mr Djait, there is one more recent psychiatric report, but similarly most of them are of a more historical nature. In relation to each of the two prisoners most of the psychiatric or psychological evidence on sentence goes to the issue of fitness to plead as opposed to direct diagnosis of psychiatric conditions.

41 Each of the prisoners has been in custody bail refused since his arrest, which in relation to the prisoner Mr Djait was 19 October 2004, and for the prisoner Mr Samadi it was 20 October 2004.

42 The only material I have before me in relation to the broader subjective circumstances and histories of the prisoners are details provided by each of them to the various psychologists and psychiatrists who they have seen. As to some of them, there does not appear to be any dispute. I accept so far as Mr Samadi is concerned from those histories and other evidence that he is now aged almost twenty-nine and is from an Algerian family. Born in Paris, he returned with his family to Algeria when he was a child. He was educated to about year 10 standard and speaks and is literate in Arabic and French. He returned with his family to France as a child where his grandmother died. Apparently that was a traumatic event for him. He was distressed by her death and thereafter, including as a child, gave some history of what on the face of it would appear to be visual hallucinations involving his grandmother being in his room. He had some medical treatment and medication for these at the time, but there is no detail about any diagnosis or any of this treatment. He came to Australia with his parents and sister in 2001, as I understand it as a refugee, and worked here as a labourer. He improved his English whilst here. He consulted Dr Makrim Guirgis, psychiatrist, as I have said, in about 2003 or thereabouts complaining of headaches and difficulty managing anger. It was at this stage that he was prescribed medication including Rivotril, although it is far from clear that this was an appropriate medication for the symptoms that he was describing at the time. He continued to be prescribed and apparently take this medication up until the time of his arrest and incarceration. As I have said, he has not taken that since his arrest on 20 October 2004. He has described to various psychiatrists and medical advisors some events which might amount to visual or auditory hallucinations, but he has never been definitively diagnosed as psychotic or as having any other form of psychiatric illness for that matter.

43 From the evidence before me in the separate fitness hearing conducted during the course of this trial but before a separate jury, I have reports and evidence from three separate psychiatrists, Dr Skinner, Dr Thompson and Professor Greenberg. There is not amongst these three psychiatrists any consensus about his diagnosis, the range seeming to be from post traumatic stress disorder through anxiety, depression, personality disorder with borderline traits, possible paranoid psychosis and mild intellectual handicap. Further to this Dr Skinner was of the opinion, given in her evidence during the fitness hearing in the middle of the trial, that some of the symptoms described to her by Mr Samadi may have been fabricated, although this itself may have been a manifestation of the borderline personality disorder and the manipulative traits that tend to accompany such a disorder. At best so far as Mr Samadi is concerned I accept more probably than not he is a person who suffers from some form of psychological or psychiatric condition, at the very least some anxiety and depression, for which he continues to receive appropriate treatment in prison. There is no evidence, however, apart from that, about what might be any psychiatric condition from which he suffers. Nor is there any evidence that whatever his condition might be that it played any part in his commission of these offences. I accept the fact that he has some form of mental condition, whatever it might be, operates to some extent as a mitigating factor, even though not actually influencing his commission of these offences. However it seems to me in the circumstances of this trial that it is not a particularly significant factor.

44 There is a further circumstance of mitigation available to Mr Samadi, namely that he has no prior criminal record and I take that into account.

45 As I understand it, and I accept, Mr. Samadi came to this country via a refugee camp from Algeria where he experienced and observed traumas which no young person need and ought to experience, which I accept has adversely affected him to an extent. I take this into account in setting what I consider to be the appropriate penalties for these offences. He has family support available to him in the community in the form of parents and sisters, and there are other references indicating a level of community support which was available to him before and whilst he was committing these offences, but which I accept will continue to be available to him when he is ultimately free to return to the community. That will have the benefit of assisting his rehabilitation to some extent.

46 So far as the prisoner Mr Djait is concerned, I accept that he is now aged thirty-six. He too was originally from Algeria. He left school at the age of fifteen and came to Australia in 1998 as a refugee. He is now a permanent resident. He has worked in many different jobs in Australia, as a labourer, kitchen hand and car washer. He does not appear to have family support in Australia. His family it would appear remain in Algeria and he has had no contact with his family since being arrested for these offences. Mr Djait has one matter only on his criminal record, an assault occasioning actual bodily harm occurring in 2004, but that was dealt with in the Local Court under the provisions of the Mental Health (Criminal Procedure) Act and as such was dismissed, and he was discharged on condition that he undertake psychiatric treatment. It seems to me in those circumstances that it is not a relevant conviction to take into account and that it is appropriate to treat this prisoner too as being a person without prior relevant convictions and I take that into account as a mitigating factor in his favour.

47 Similar to Mr Samadi, Mr Djait also has a history of being treated for psychiatric conditions for which there is no clear diagnosis. He appeared to have been treated in psychiatric hospitals in 2003 and 2004, with a possible diagnosis of schizophrenia, but that diagnosis is not clearly made at present. The most recent report from Dr Westmore in relation to Mr Djait would seem to indicate that he is being properly and appropriately treated at present for depression which is ongoing, but there is no clear evidence of an ongoing psychotic illness, thus his antipsychotic medication has not been given to him continuously by prison authorities. I accept more probably than not that he also suffers from anxiety. I do not accept any of the opinions in the reports from Dr Makrim Guirgis that he is currently, even if he ever was in the past, suffering from epilepsy. He too has not been using the drug Rivotril since being incarcerated and he does not appear to have had any adverse epileptic episodes since then. Similarly to Mr Samadi I accept that Mr Djait suffers from some form of psychological or psychiatric condition and was at the time he committed these offences, but the actual diagnosis is not known. Whatever it might be however, there is no evidence that it played any part in his commission of these offences, and whilst the mere fact of his condition to some extent mitigates what would otherwise be the appropriate sentence, it seems to me to be of limited significance in this case.

48 It is argued on behalf of Mr Djait that I would find that his judgment was seriously compromised at the time of the commission of these offences because his already vulnerable mental state was compounded by his abuse of alcohol, marijuana, cocaine and the Rivotril. I do not make such a finding in this case because there is no evidence to support such a finding. On the contrary, in his more recent report, Dr Westmore reports that Mr Djait denied he was using illegal drugs at the time of the offence. It is also argued on behalf of Mr Djait that I would find that he has expressed a degree of remorse and contrition to the extent that he is entitled to some mitigation or lessening of his sentence. In the case of both prisoners they were convicted after trial and thus in neither case can there be any remorse or contrition inferred from the pleas of guilty. Mr Samadi as is his right had not commissioned any further reports for sentence and has not given evidence on sentence, and I can only assume that his position is as it was when he gave evidence at trial, namely that he denies committing the offences and thus there is no remorse or contrition entitled to be taken into account. This of course does not aggravate the appropriate sentence but there is no mitigation available to him as a result of that.

49 Mr Djait, in the most recent report from Dr Westmore on the face of it expresses remorse and sorrow for the offences and appears to express some empathy for the victims of these offences but stopped short of explaining exactly what it is he is sorry for and did not in fact admit to committing the offences to Dr Westmore. It seems to me that this falls somewhat short of the sort of remorse and contrition which would amount to a mitigating or discounting factor in circumstances where the convictions are after trial. It is also argued on behalf of Mr Djait that he should be entitled to some sort of discount on a utilitarian basis, even though convicted after trial, because he did not put all matters in dispute. It is true that he admitted his presence at all offences and thus identity was not in dispute, and it is true that he admitted sexual intercourse with the relevant victim. However as to admitting presence and thus identity, this did not occur until after a voir dire lasting about three days in the week before the trial commenced, and in circumstances where I had made orders allowing all of the offences to be tried together and made findings about the admissibility of evidence as coincidence evidence. Even where those issues were not put into dispute it was nonetheless the case that each of the victims was called, most of them coming voluntarily from overseas and two from interstate to give evidence, and each of them was subject to quite lengthy cross-examination on behalf of each of the accused. The trial lasted seven weeks and the accused Mr Djait gave evidence, which the jury rejected. This does not seem to me in these circumstances that there was any utilitarian value at all in the accused Mr Djait’s admission of his presence and the fact of sexual intercourse, and these admissions in the circumstances do not in any way indicate the willingness of the accused to facilitate the administration of justice. I hasten to add of course that this does not aggravate the appropriate sentence for Mr Djait, but nor do I accept that he is entitled to any discount or mitigating benefit as a result of these admissions.

50 It is further argued on behalf of Mr Djait that his moral culpability or criminality was lessened because the drug that he used to spike the drinks of his victims was prescribed for him by a medical practitioner, Dr Guirgis. I reject this proposition. Whilst it is so that Mr Djait was legally in possession and legally prescribed this drug, neither of those two factors gave him any right, nor lessens the moral culpability of providing those prescription drugs to people for whom they were not prescribed, particularly so in circumstances where he knew they did not know they were taking them.

51 It seems to me important however that I record some comments about this issue. It appears that each of these two prisoners had been patients of Dr Makrim Guirgis for some time and were being treated by him for some form of epilepsy and other conditions. He treated them inter alia by prescribing the drug Rivotril, albeit on the evidence that was at trial, that was essentially an anti seizure medication which had some limited use in the treatment of anxiety and other conditions but was not recommended as a drug of choice for such conditions. Drugs such as Rivotril or Clonazepam, the proper drug name, are also, as is well known to the Courts and no doubt to the medical profession, generally, regularly and frequently abused in the wider community in the same way people use and abuse illegal drugs. Clonazepam I accept from the evidence at trial is also addictive and I accept also from the evidence should not be used over prolonged periods in large doses because of this impact. I also accept from the evidence at trial that its use should be monitored by prescribing doctors by the use of frequent blood testing to ensure that it is being properly used, not abused and only used as much as is necessary. It would appear, at least from what I know in this trial, that these checks and balances were not employed in the treatment of these two prisoners, and even more surprisingly, on at least one occasion Dr Guirgis had a joint consultation with them together and prescribed both of them this drug at that joint consultation, even though they are not related and have no connection with each other, except of course as we now know that they were using this drug prescribed for them by Dr Guirgis to spike the drinks of tourists and steal from them, and in each case, albeit separately, sexually assaulting a woman who was under the influence of this drug. These two prisoners had these drugs by way of legally administered and filled prescriptions given to them by a registered medical practitioner, but it is also the case that it was their ready access to this drug in an apparently uncontrolled and unchecked manner which made their commission of these offences so much easier. They cannot shift the blame to anyone else, let alone the prescribing doctor, because they did not take the drug as prescribed, they administered it to others, which could never have been the intention of the prescribing doctor. However in circumstances where the impact of such drugs is well known to the medical profession and the propensity of drug users to self administer such drugs as drugs of addiction is well known both to the medical profession and the Courts generally, it is surprising and disturbing that Dr Guirgis took no steps apparently to monitor his treatment of these two prisoners, as it is equally curious that he would have agreed to a joint consultation with them where he prescribed the drug to them both. It is to be hoped that the authorities will take some action to investigate this aspect of the case.

52 So far as assessing the prospects of rehabilitation of these two prisoners is concerned, it seems to me that that is a somewhat difficult proposition. Mr Samadi has some community assistance when he is released from custody in the nature of his family and other members of their community, but it will be some time before he can take advantage of that. Mr Djait does not on the face of it have access to much in the way of community assistance on his eventual release, but has taken advantage of adult vocational courses, which will also be of benefit to him. Neither of them however has anything on their record before this spree of criminal behaviour to indicate that at least before these offences were committed they were the sort of people who committed offences such as this. It is hard for me however on the limited information I have to make any accurate assessment of their prospects of rehabilitation. Whatever they might be however, they will be assisted by a somewhat longer than normal period of supervision in the community after what will be relatively lengthy periods of imprisonment.

53 Each of them is apparently in protection in prison on their own applications. There is nothing in the way of direct evidence before me to explain the extent to which that has any direct impact on them, but I accept as a matter of judicial notice, more probably than not this limits the ability they have to access some programmes available in prison. Having said that of course Mr Djait has taken advantage of some programmes and has tendered the certificates from them on this sentence.

54 In relation to the sexual assault offences each of them has a standard minimum term of seven years which is for offences of this type in the middle range of seriousness, after conviction at trial. These offences in each case it seems to me must come close to, if not above the middle range of offences objectively, at the very least because the prisoners in each case knew that the victims were under the influence of drugs which they themselves had in fact administered and would be unable to resist the sexual intercourse.

55 The subjective circumstances of the prisoners however, being some extent of psychological and psychiatric illnesses and the lack of prior records however, it seems to me places these just below the middle range, however I do take into account when assessing the appropriate non parole for these sexual offences the seven year standard minimum term set by the legislature in appropriate cases. In those circumstances I propose for each of these sexual assault offences to set a non parole period of six years. In relation to the prisoner Mr Djait that will be in relation to each of the sexual assault offences but I propose that they be served concurrently, because in effect they represent one episode of criminality. I will come shortly to the issue of the parole period.

56 As to the drink spiking offences, it seems to me that there is a very wide range of sentences available. There is little in the way of assistance from statistics or similar cases. These offences it seems to me factually are not at the top of the range in terms of objective seriousness because the intention in this case was to steal. Offences under s 38 where the intention was to commit a physical assault such as a sexual assault it seems to me would be a more serious offence. Further in relation to all of them, with the exception of that involving Mr Mogg, either there was no property actually stolen or the property which was stolen was of relatively small value. However rendering someone unconscious is serious. Targeting vulnerable people, either because they are drunk or tourists unlikely to report, is serious. Drink spiking is serious and potentially fatal. There should be a strong message of general deterrence sent by the sentences imposed here. The community expects that both local members of the community and visitors who come to our shores to enjoy our scenery and hospitality, and particularly so in the case of young people, either local or visitors, are able to feel safe and comfortable to go into a hotel or nightclub or walk the streets of Sydney to enjoy themselves, have fun, have a drink or two if they wish, strike up a conversation with strangers, particularly locals, if they are tourists, without the risk of predators like these two prisoners, slipping something into their drinks so that they can take advantage of them and steal from them or worse. These offences are infrequently prosecuted because by their very nature they are hard to prove, and the sentences must send a strong message to the community that such behaviour will not be tolerated and will give rise to a significant prison terms.

57 As I have said it is hard to find on any of the comparative statistics or cases anything in the nature of an appropriate range, but it seems to me for each of the drink spiking offences a non parole period of five years is called for. In fact some incidents are more serious than others, either because of the number of victims in each incident, the amount of property stolen or the fact that property was not stolen or the like. But in the circumstances I do not propose to attempt any distinction between any of the twelve offences by a lesser or greater non parole period. I propose however that each of the separate offences contained in each incident be ordered to be served concurrently with each other.

58 I now turn to the issue of whether or not it is appropriate that the sentences for each prisoner reflect parity. It seems to me there is every reason in this case why that should apply. There is no real difference in terms of their involvement in any of the offences and the jury’s verdicts confirm that. Their subjective circumstances are very similar. It seems to me that there is no real difference between the two of them and I propose that the same sentence be applied to each.

59 As to accumulation or otherwise of any of these sentences in the light of the non parole periods which I have announced, if they were each served consecutively, that would give rise to a total non parole period of thirty-six years. That it seems to me is excessive to reflect the total criminality, and in fact well excessive to reflect the total criminality. I propose a partial accumulation which will give rise to a total non parole period of twelve years, which it seems to me adequately deals with the criminality involved and the circumstances of each of the prisoners. I will be setting a parole period of three years for each of these sentences. For all but the last in time, the prisoners will not be able to be released on parole because they will continue to serve their partially accumulated non parole periods applicable to the other sentences.

60 In determining the length of the parole I take into account special circumstances which are present. They are in each case the fact that it is the first period of imprisonment for both of the prisoners, the fact that there will be a partial accumulation of the sentences, the fact that they will no doubt continue to serve their imprisonment in protection, and the fact that they will require a longer than normal period of supervision in the community on their ultimate release.

61 That being the case, these are the formal sentences that I impose: In the case of each of the prisoners, each of them is convicted on all counts. For Mr Djait, counts 1, 2 and 3 will be a non parole period of five years commencing 19 October 2004 and expiring 18 October 2009, with a parole period of three years, 19 October 2009 and expiring 18 October 2012. For Mr Djait, the sentence for count 4 is a non parole period of five years, commencing 19 October 2005 and expiring 18 October 2010, with a parole period of three years, commencing 19 October 2005 and expiring 18 October 2013. For Mr Djait, the sentences for count 5 and 6 are a non parole period of five years commencing 19 October 2006 and expiring 18 October 2011, with a parole period of three years commencing 19 October 2011 and expiring 18 October 2014. For Mr Djait for counts 7 and 8, five years non parole period commencing 19 October 2007 and expiring 18 October 2012 with parole period of three years, 19 October 2012 and expiring 18 October 2015. For Mr Djait for counts 9, 10 and 11, five years non parole commencing 19 October 2008 and expiring 18 October 2013, with parole period of three years commencing 19 October 2013 and expiring 18 October 2016. For Mr Djait on count 15, there will be a non parole period of five years commencing 19 October 2009 and expiring 18 October 2014, with a parole period of three years commencing 19 October 2014 and expiring on 18 October 2017. For the offender Mr Djait on counts 12, 13 and 14, there will be a non parole period of six years commencing 19 October 2010 and expiring on 18 October 2016 with a parole period of three years commencing on 19 October 2016 and expiring on 18 October 2019, thus giving rise to an overall non parole period of twelve years commencing on 19 October 2004, expiring on 18 October 2016 with thereafter parole period of three years expiring on 18 October 2019, thus an overall head sentence of fifteen years.

62 In relation to the prisoner Mr Samadi, counts 1, 2 and 3, the sentences are five years non parole period commencing 20 October 2004, expiring 19 October 2009 with a parole period of three years commencing 20 October 2004, expiring 19 October 2012. Count 4, five year non parole period, 20 October 2005, expiring 19 October 2010, parole three years commencing 20 October 2005, expiring 19 October 2013. Counts 5 and 6, five years non parole commencing 20 October 2006, expiring 19 October 2011, parole three years commencing 20 October 2011 and expiring 19 October 2014. For counts 7 and 8, five years non parole commencing 20 October 2007, expiring 19 October 2012, parole five years commencing 20 October 2012, expiring 19 October 2015. For counts 9, 10 and 11, five years non parole commencing 20 October 2008, expiring 18 October 2013, parole of three years commencing 20 October 2013, expiring 19 October 2016. For count 15 in relation to Mr Samadi, five years non parole commencing 20 October 2009 and expiring on 19 October 2014, with parole period of three years commencing 20 October 2014 and expiring on 19 October 2017. In relation to Mr Samadi, count 16 is a non parole period of six years commencing 20 October 2010 and expiring on 19 October 2016 with parole of three years commencing on 20 October 2016 and expiring on 19 October 2019, thus in his case also amounting to a fifteen year overall term of imprisonment with a total non parole period of twelve years commencing on 20 October 2004 and expiring on 19 October 2016.