R v H

[2005] NSWCCA 282

CITATION:	Regina v H [2005] NSWCCA 282 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	27/7/05
JUDGMENT DATE:	16 September 2005
JUDGMENT OF:	Studdert J at 1; Bell J at 1; Latham J at 1
DECISION:	1. Leave granted to appeal against the severity of the sentences imposed; 2. Allow the appeal and quash the sentences imposed in the District Court; in lieu thereof the Applicant is sentenced as follows; Count 1: Six months' imprisonment to date from 18 October 2000. This sentence expires on 17 April 2001; Count 2: Six months' imprisonment to date from 18 October 2000. This sentence will expires on 17 April 2001; Count 3: Eighteen months' imprisonment to date from 18 October 2000. This sentence expires on 17 April 2002; Count 4: (Taking into account the four offences on the form 1) Three years and nine months' imprisonment to date from 18 October 2000. This sentence expires on 17 July 2004; Count 5: Three years' imprisonment to date from 18 October 2002. This sentence will expire on 17 October 2005; Count 6: Three years' imprisonment to date from 18 October 2005. This sentence will expire on 17 October 2008; Count 7: Six years and nine months' imprisonment to date from 18 October 2002. This sentence will expire on 17 July 2009. A non-parole period of four years is specified. The non-parole period will expire on 17 October 2006; Count 8: Nine years' imprisonment to date from 18 October 2002. This sentence will expire on 17 October 2011. A non-parole period of six years is specified. The non-parole period will expire on 17 October 2008; Count 9: Six years and nine months' imprisonment to date from 18 October 2005. This sentence will expire on 17 July 2012. A non-parole period of four years is specified. The non-parole period will expire on 17 October 2009; Count 10: Three years' imprisonment to commence on 18 October 2009. This sentence will expire on 17 October 2012; Count 11: Seven years and six months' imprisonment to date from 18 October 2009. This sentence will expire on 17 April 2017. A non-parole period of three years is specified. The first date upon which the applicant will be eligible for consideration of release on parole is 17 October 2012

CATCHWORDS:	Criminal law - application for leave to appeal against sentences - act of indecency - assault - aggravated indecent assault - detention of complainants for advantage - aggravated sexual intercourse without consent (in company) - accessorial offences and offence as principal in the first degree - sexual intercourse without consent - whether errors in findings and approach by sentencing judge - whether sentences unduly harsh and severe.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCA 518 Chow v DPP (NSW) (1992) 28 NSWLR 593 Markarian v R [2005] HCA 25; 79 ALJR 1048 Power v The Queen (1974) 131 CLR 623 R v AEM Snr; KEM; MM [2002] NSWCCA 58 R v Bakewell (unreported) NSWCCA, 27 June 1996 R v Bailey (1988) 35 A Crim R 458 R v De Simoni (1981) 147 CLR 383 R v Durocher-Yvon (2003) 58 NSWLR 581 R v Engert (1995) 84 A Crim R 67 R v Henry (1999) 46 NSWLR 346 R v Israil [2002] NSWCCA 255 R v Kier [2004] NSWCCA 106 R v Letteri (unreported) Court of Criminal Appeal, 18 March 1992 R v MA [2001] NSWCCA 30 R v Palu [2002] NSWCCA 381; 134 A Crim R 174 R v Scognamiglio (1991) 56 A Crim R 81 R v Sharma (2002) 54 NSWLR 300 R v Thomson [2000] NSWCCA 309; 49 NSWLR 383 R v Tsiaras (1996) 1 VR 398 at 400 R v Uzabeaga [2000] NSWCCA 381 R v Wickham [2004] NSWCCA 193 R v Wright (1997) 93 A Crim R 48 Wong v R (2001) 207 CLR 584
PARTIES:	H (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2985/2003
COUNSEL:	M. Ramage QC / N. Mikhaiel (Appellant) R. Cogswell SC / D. Arnot (Respondent)
SOLICITORS:	SE O'Connor (Appellant) S Kavanagh (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0877
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ

IN THE COURT OF
CRIMINAL APPEAL


2985/2003

STUDDERT J
BELL J
LATHAM J

Friday 16 September 2005

Regina v H

Judgment

1 THE COURT: This is an application for leave to appeal against the severity of sentences imposed on the applicant by his Honour, Judge Finnane QC (the Judge) on 23 August 2002. The applicant pleaded guilty to an indictment containing eleven counts charging sexual offences which were committed against four complainants on three separate occasions in August 2000.

2 At the date of the commission of the offences the applicant was a young man aged seventeen years and four months. He is mildly intellectually handicapped.

3 The sentences in the aggregate amounted to a term of twenty-five years’ imprisonment with a non-parole period of fifteen years. The first sentence was specified to have commenced on 22 November 2000, from which date the applicant had been continuously in custody. The Judge took into account a further thirty-five days pre-sentence custody in the length of the sentence imposed for the offence charged in count 11. The last sentence will expire on 15 October 2025. The applicant’s earliest date for consideration of release on parole is 15 October 2015.

4 Nine grounds of appeal were filed on 1 August 2003. On the hearing of the application leave was sought and granted to rely upon a tenth ground, which relates to the applicant’s mental condition.

5 We will set out the details of the sentences imposed for each group of offences after setting out the facts relating to each of the three incidents by reference to the agreed statement of facts that was before the Judge.

6 4 August 2000 – the Punchbowl offences – Ms E

“On the evening of 4 August 2000, the victim Ms E was travelling on a train from the city to Punchbowl after finishing work. She was approached by 4 males on the train, who sat near and around her. H was one of those males. While sitting next to the victim, Ms E, H put his hand on her thigh, moving it upwards towards her groin. He said to her “Will you fuck me?” (Form 1 – Aggravated Indecent Assault).
She tried to push his hand away but he held her tighter and put his face against her cheek. A co-offender then got up from his seat and moved around behind the victim, placing his hand in front of her face with a condom packet in it. He grabbed her around the neck and said to her “Come for a fuck” (Form 1 – Common Assault – joint criminal enterprise). The victim was unable to breathe for a short period of time. She threw her hand backwards striking the co-offender, who threatened her “Do it again and I’ll knock you out”. The co-offender then hit and punched the victim around the head four or five times (Form 1 – Common Assault – joint criminal enterprise). H and this co-offender were laughing.
H then spoke with one of the other males, and was handed a condom. He took his trousers down. In front of the victim he put the condom on his penis and as he masturbated he asked the victim to touch his penis (Commit Act of indecency – s.51A Plea).
The victim made a comment to H “You wonder why people don’t like the Lebanese”, and H responded by slapping the victim across the face with his hand (Common Assault –
s.51A Plea). The other males laughed. H received a call on his mobile phone. He said to the caller ‘I’ve got a slut with me bro, come to Punchbowl’.
H then put his leg up on the seat on which the victim was seated with his crotch directly in front of her face. She tried to push him away but was unable to move. H was saying ‘come for a fuck’ (Form 1 – aggravated indecent assault). He told her that if she gave him a headjob, the rest of the group would leave her alone. He then said she would have to give the whole group a headjob, and the group of males laughed.
H then placed his arms around the victim’s waist and began rubbing her upper legs before touching her on the vagina on the outside of her clothing (Aggravated Indecent Assault –
s.51A Plea). The victim pushed his hand away and H responded by pushing his face into her chest and burping.
Throughout the incident on the train, the victim was unable to leave where she was seated due to the way in which she was surrounded by the group, and their combined actions. (Detain for Advantage – s.51A Plea).
The victim and the group of males alighted from the train at Punchbowl. On the platform, H placed his arm around the victim and indicated a friend in the distance saying ‘my friend wants a headjob’. The victim broke free, and ran home in a distraught state, immediately alerting her mother to what had happened. The victim’s mother went immediately to the train station, where she was confronted nearby by the group of males, who laughed at her yelling out “here comes the slut’s mother”. H was one of the boys in the group who was abusive.
The victim identified H from photographs. H agreed he was depicted on the SRA security video footage at Punchbowl Railway Station wearing a Canterbury rugby league jersey, which is the same jersey that victim said he was wearing when the assaults took place.”

7 This incident gave rise to the first four counts in the indictment. Count 1 was a charge of committing an act of indecency towards Ms E, a person under the age of sixteen years, namely fourteen years. The offence is provided by s 61N(1) of the Crimes Act 1900 (the Act) and carries a maximum penalty of imprisonment for two years. The applicant was sentenced to a fixed term of imprisonment for six months to commence on 22 November 2000 and to expire on 21 May 2001 for this offence.

8 The second count charged the applicant with common assault on Ms E. This offence is provided by s 61 of the Act and carries a maximum penalty of imprisonment for two years. The applicant was sentenced to a concurrent term of six months’ imprisonment for this offence to commence on 22 November 2000 and to expire on 21 May 2001.

9 Count 3 charged the applicant with aggravated indecent assault. This is an offence provided by s 61M(1). The maximum penalty for this offence is imprisonment for seven years. The circumstance of aggravation was that Ms E was aged fourteen years at the date of the offence. The applicant was sentenced to a fixed term of five years and three months’ imprisonment for this offence to commence on 22 November 2000 and to expire on 21 February 2006.

10 Count 4 charged the applicant with detaining Ms B for advantage to himself and three other males. The offence is provided by s 90A of the Act (as it then stood). The maximum penalty for this offence is twenty years, unless the victim is released without substantial injury, in which case the maximum penalty is fourteen years. The Judge approached the sentencing upon the basis that the maximum penalty was fourteen years.

11 The applicant asked the Judge to take into account four further offences pursuant to the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) in dealing with him for the offence of detaining Ms E for advantage contrary to s 90A of the Act (count 4). The Form 1 offences that were to be taken into account were (i) aggravated indecent assault; (ii) common assault; (iii) common assault and (iv) commit act of indecency. The applicant was sentenced to a fixed term of imprisonment of five years and three months in respect of this offence, taking into account the matters on the Form 1. This sentence was partly accumulated with the sentence imposed on count 3. It was expressed to commence on 21 August 2001 and to expire on 20 November 2006.

12 10 August 2000 – the Northcote Park offences – Ms A and Ms B

“At about 9:15 pm on Thursday 10 August 2000 the victims, Ms A and Ms B, were at the Westfield Shopping Centre at Chatswood. Eight young males approached them, one of whom was H. Ms A and Ms B were engaged in conversation, offered some marihuana and a lift to their homes. Ms A and Ms B went with the males, who separated into two groups of four. One group, which included H, got into a yellow coloured hatchback. The others got into a white van. Ms A and Ms B got into the white van.
Ms A and Ms B were driven in the direction of the city and across the Sydney Harbour Bridge. Police stopped the red car on the way to the park and traffic infringements were issued to the driver. Ms A and Ms B were taken to Northcote Park, Greenacre where the offenders separated them and took them to different areas within the park. ..
Ms A and Ms B were detained for sexual advantage at the park as the following offences took place.
Ms A was forced to perform oral sex on one of the alleged co-offenders (Bilal Skaf). When the males from the red car, including H, approached and surrounded her, she stopped.
Ms A was tackled to the ground by one of the co-offenders in the presence of H (Form 1 assault offence number 1). When she was on the ground some of the offenders kicked her legs. She was picked up by one of the offenders and thrown into nearby bushes. As she got up she was again tackled to the ground by one of the group.
Ms A was surrounded by five offenders, one of whom was H. The co-offender Bilal Skaf allegedly pushed them away and forced Ms A to perform oral sex on him. After he walked away the other offenders, including H, surrounded the victim, who was crying. H said, “There’s no point in crying, it won’t get you anywhere”. Ms A said “I don’t want to do anymore, I just want to go home.”
Ms A was threatened and told that the group would bash her. One of the co-offenders produced a flick-knife and opened the blade. H did not have any knowledge of the knife and did not see it…

The group of males argued as to who should be next. One of the co-offenders threatened to bash Ms A if she did not perform oral sex on him, which she did out of fear and with others in the group, including H, nearby. As she was doing this, that co-offender called out to his friends “She’s not doing it right”. That co-offender held her head until he ejaculated into her mouth.

Ms A tried to hide behind a seat in the park. H ran over and Ms A tried to run away. H said, “You won’t be leaving until I get one”. One of the co-offenders came over and spoke in Lebanese to H and pushed H away. That co-offender continually threatened to bash Ms A if she did not perform oral sex on him, which she did out of fear and with the others nearby. As the co-offender was forcing her to do this, he called out “She’s not doing it right. This chick’s shit at head jobs”. He ejaculated and walked away. ..
H then went to Ms A and threatened to bash her if she did not give him a ‘head job’. H gestured towards Ms A with a clenched fist and threatened her. H forced Ms A to give him oral sex. H held the back of her head and grabbed her breasts. H did this until he ejaculated on Ms A. H walked away, saying “Thanks for nothing you cheap slut”.
Another co-offender came over and threatened to bash Ms A if she did not perform oral sex on him. She complied out of fear. The group of offenders, including H, again surrounded her, demanding to know if she had sexually transmitted or other diseases. H again raised his fist to her threatening to bash her if her denials were untrue.
Whilst these offences were occurring Ms B was in another area of the park. The offenders moved around the park and participated in the assaults. Ms B was forced to her knees by one of the offenders. That offender forced her to perform oral sex on him.
Ms B was surrounded by five offenders. One of the offenders took Ms B behind a toilet block and he forced her to the ground and forced her to perform oral sex on him. ..
Ms B was then tackled to the ground by another co-offender in the presence of H (Form 1 assault offence number 2) and threatened so that she would perform oral sex on the co-offender. That co-offender slapped her across the face. Ms B was then forced to perform oral sex on him in H’s presence. Ms B was again tackled to the ground by another of the co-offenders.
The offenders all ran toward the van and drove off.
Ms A walked to where Ms B was sitting on the ground. They were hysterical and decided to call the police. They walked along a pathway but could not find a phone. They did not know where they were. The victims hailed down a passing car. Con and Anna Christodoulou were in the car. The victims told them what had happened. Mr Christodoulou tried to call the police but his mobile phone was flat. Mr and Mrs Christodoulou left the complainants on the street corner and told them they would call the police from their house nearby. After a short time the victims started to walk away. Mr and Mrs Christodoulou returned and waited with the complainants until the police arrived. When the police arrived, the victims were taken to Liverpool Hospital, where they were examined.
H was offered the opportunity to participate in an interview and an identification parade on 29 September 2000, both of which he declined. Police conducted photographic identification with both victims. Neither victim identified H when shown his photograph. Police were advised on 4 December 2000 that analysts had found H’s DNA in semen located on Ms A’s jeans. He was arrested at Court on 14 December 2000.
H indicated his willingness to plead guilty very early on in the Children’s Court proceedings and prior to any other co-offender doing so.”

13 Count 5 charged the applicant with detaining Ms A for advantage contrary to s 90A. For this offence he was sentenced to a fixed term of three years and nine months’ imprisonment. This sentence was partly accumulated on the fixed term sentence imposed for count 4. It commenced on 21 August 2004 and will expire on 20 May 2008.

14 Count 7 charged the applicant with aggravated sexual assault without consent with Ms A (as an aider and abetter). For this offence he was sentenced to a term of eleven years and three months’ imprisonment to commence on 21 August 2004 and expire on 20 November 2015. A non-parole period of six years was specified, which will expire on 20 August 2010.

15 Count 8 charged the applicant with a further count of sexual intercourse without consent in circumstances of aggravation. The applicant was the principal in the first degree in this offence. The Judge was asked in sentencing him for this offence to take two further offences into account on a Form 1. These were two counts of common assault, one relating to Ms A and one relating to Ms B. The applicant was sentenced to a term of eleven years and three months’ imprisonment to commence on 21 August 2004. A non-parole period of six years, expiring on 20 August 2010, was specified.

16 Count 6 charged the applicant with detaining Ms B for advantage contrary to s 90 A. For this offence he was sentenced to a fixed term of three years and nine months’ imprisonment. The sentence was expressed to commence at the expiration of the non-parole period with respect to the offences concerning Ms A. It will commence on 21 Aug 2010 and will expire on 20 May 2014.

17 Count 9 charged the applicant with aggravated sexual intercourse without consent. This was an offence against Ms B. The applicant’s liability was as an aider and abetter. For this offence he was sentenced to imprisonment for eleven years and three months. The sentence was expressed to commence at the expiration of the non-parole period specified in relation to the offences involving Ms A. Thus, it will commence on 21 August 2010 and expire on 20 November 2021. His Honour specified a non-parole period of four years, which will expire on 20 August 2014.

18 30 August 2000 – Bankstown – Ms C

“On the afternoon of 30 August 2000, Ms C was travelling on a westbound train from Belmore. The young person H and approximately four other young males approached Ms C on the train and sat next to her, opposite her and behind her. The young males asked Ms C a number of personal questions. H asked Ms C whether she had ever had sex with a Lebanese man. The young males also touched Ms C in an inappropriate manner.

A co-offender convinced Ms C to disembark from the train at Bankstown Railway Station. The lures used were the opportunity to smoke marijuana with the young males, and the promise of a lift home. The young males walked from the station with Ms C, one of them placing his arm around her. The group, with Ms C walked to the 7-11 store.
Ms C received a call from her friend, LN on her mobile phone. One of the co-offenders took Ms C’s phone from her, and placed it down his pants.
The young males, with Ms C, walked to a nearby toilet block in Marian St Bankstown. The co-offender with Ms C’s mobile phone entered the toilet block momentarily, coming out and saying to Ms C “You’re up”. He had her mobile phone in his hand. Ms C thought he meant it was her turn for a smoke.
Ms C entered the toilet block and was in turn sexually assaulted by four of H’s co-offenders. The exit door was being held by one or more of the offenders. When the first of the offenders left the toilet block, he was unable to exit. He said something in Lebanese and the door opened. H was outside the toilets at the time, and told police the approximate duration of time that each of his co-offenders spent inside the toilet block, from 10 - 15 minutes for the first three offenders to 1/2 an hour for the last of the co-offenders. He told police that he was aware that sexual assaults were taking place.
H did not himself sexually assault Ms C at the Marian Street toilet block. At one stage, he entered the toilet block and witnessed a co-offender “Coppin a head job”. Ms C says she recalls H yelling angrily at his co-offenders but she is unsure of his motivation for doing so.
Throughout the assaults Ms C was distressed and crying. She was unable to leave the toilet block.
Following the assaults in the toilet block, Ms C was led to another vehicle containing a further group of young males. She was crying for her phone. One of the persons with her was H, and he introduced Ms C to this carload of males. H told police that the driver of this vehicle was a friend. Ms C was told by these young males that they would take her home. Ms C thought she would be safe because she was offered a lift home by H and the two other young males in the car.
She was eventually driven by H and his co-offenders to McDonalds where she was given food. H then received a phone call from a co-offender (Mohammed Skaf) asking for his location. She was taken to the Trotters Club in Bankstown.
When the vehicle arrived at Bankstown Trotters Club, Ms C was let out in the company of H. The vehicle then left the immediate vicinity for a brief period, leaving H and Ms C alone. They waited in a shed in the car park.
While alone, H had a conversation with Ms C, during which he told her that he had not had sex for a long time, and could she help him out. Ms C, still shaken from the previous assaults, asked him if he was serious, but he persisted, asking her for a ‘head job’. He took hold of her hand and forced her to touch his penis. She tried to resist but he became angry. He pushed her down onto her knees, undid his trousers, pulled them down, and forced her to perform oral sex on him. He was not wearing a condom. He ejaculated in her mouth. Ms C was crying and distressed throughout this assault. H is charged under s 61I for this assault – Sexual Intercourse Without Consent.
The vehicle earlier described returned with the young males in it. H soon after left the immediate scene. Shortly afterwards Ms C was sexually assaulted by the young males in the vehicle (not in the presence of H).
H was present when a (second) red vehicle arrived at the Trotters Club. Ms C got into this vehicle.
Strike Force police are in possession of phone records indicating that H was in regular contact with his co-offenders throughout the late evening (from 9 pm) on 30 August 2000 until 1 September 2000. The phone records show that he also phoned the victim, Ms C on three occasions on the evening of 30 August 2000, at a time after she was dropped at Lidcombe Railway Station by the last carload of offenders. He also phoned her on four further occasions on 31 August 2000.
For the purposes of the Detain for Advantage charge, the period of detention is alleged to have commenced from the moment she is led to the Marian Street toilet block after her telephone has been confiscated. So far as the young person H is concerned that period continues throughout the assaults up until his direct involvement ceases at the Trotters Club, Bankstown. The advantage is detention for purposes of sexual assault.”

19 The applicant was charged with two offences arising out of this incident.

20 Count 10 charged him with detain for advantage contrary to s 90A. For this offence he was sentenced to imprisonment for three years and nine months to commence at the expiration of the non-parole period specified with respect to the offences arising out of the incident at Northcote Park. The sentence will commence on 21 August 2014 and expire on 20 May 2018. A non-parole period of one year, one month and twenty-five days was specified. This will expire on 15 October 2015.

21 Count 11 charged the applicant with sexual intercourse with Ms C without her consent. This was an offence under s 61I. The applicant was sentenced to imprisonment for eleven years, one month and twenty-seven days to date from 21 August 2014 and to expire on 15 October 2025. A non-parole period of one year, one month and twenty-three days was specified. This will expire on 15 October 2015.

22 The Judge directed that H’s sentence be served in a juvenile justice institution until he attained the age of twenty-one years. He recommended that the Department of Corrective Services permit the applicant to serve his sentence in a unit for developmentally delayed prisoners. His Honour declined an application to lift the suppression order on the applicant’s name taking into account the circumstance that the applicant was a young person with intellectual and mental disabilities.

The applicant’s case

23 A considerable amount of material concerning the applicant’s background, mental state and prospects of rehabilitation was in evidence at the sentence hearing.

24 The applicant was born on 21 April 1983 and was the youngest of eight children. His parents had come to Australia from Lebanon. His mother was aged eleven years when she married his father. His eldest brother, Fawaz, was only twelve or thirteen years younger that their mother. With the exception of Fawaz, all of the applicant’s siblings suffer from physical and mental disabilities. One of his sisters suffers from Down Syndrome and requires fulltime care.

25 The applicant has an IQ of 67, which places him within the lowest one percent of the population. He is assessed as being mildly mentally retarded.

26 A psychosexual assessment put the applicant as presenting a moderate risk of re-offending at the date of sentence.

27 The applicant’s brother, Fawaz, who is in responsible employment and whose evidence the Judge accepted, said that the applicant had presented behavioural problems as a child and in his teenage years. He was given to explosions of anger accompanied by punching walls and damaging furniture. At times it appeared that he did not comprehend what he was doing. He had been troublesome at school and the family had been advised that he required psychiatric or psychological assistance. Largely as the result of the family’s poor circumstances he had not received the treatment that was recommended.

28 The applicant’s parents separated when he was a child and he and his siblings remained with their mother. She was pre-occupied with the demands of the child with Down syndrome. The applicant competed for her attention.

29 Fawaz said that in his teenage years H began to associate with undesirable youths. Fawaz warned him against this but without effect.

30 The applicant had attended a special school because of his intellectual difficulties. He had difficultly in reading and arithmetic and generally found learning difficult. He left school when aged about fourteen years.

31 The applicant was assessed by a psychologist with the Department of Juvenile Justice as an immature young man who appeared to accept the seriousness of his offences and who did not wish to be in this situation again. He displayed limited interpersonal skills, often asking for questions to be repeated or rephrased. He appeared to have difficulty understanding the concepts discussed with him. He was polite and cooperative during each interview session. Since being taken into custody the applicant had resumed school studies and undertaken other activities, including individual counselling and various vocational and educational courses.

32 The applicant had ongoing contact with his family and expressed concern about the shame he had brought upon them. He had always been close to his mother for whom these offences came as a terrible blow.

33 The Judge commented on the report of Dr Wade, a psychiatrist, who had seen the applicant in July 2002 and who considered that he had symptoms suggestive of paranoid schizophrenia. These included hallucinations that involved hearing voices. The Judge also commented on the report of Dr Westmore, a psychiatrist, who in reports prepared earlier than Dr Wade’s report, did not express an opinion that the applicant was suffering from any mental illness. His Honour concluded that the applicant was “intellectually and possibly mentally disabled” (ROS 29).

34 The Judge found that the applicant’s family loved and were supportive of him. They had taken steps to make him aware of their disapproval of his conduct, while at the same time providing encouragement to him to rehabilitate himself.

35 His Honour observed that the applicant had expressed remorse and concern about the effect of his actions on the complainants. He found that he was “apparently quite severely affected by his realisation of the enormity of his offences” (ROS 28.2). His Honour accepted that the applicant’s feelings of remorse for his victims were genuine.

36 The Judge allowed a twenty-five percent discount on the sentences that he would otherwise have imposed on the applicant in recognition of the utilitarian value of his early pleas of guilty. In light of the evidence of the applicant’s intellectual and possible mental disability the Judge determined that considerations of general and specific deterrence were of less significance in sentencing him than would otherwise be the case. He found that the applicant has reasonable prospects of rehabilitation if given the benefit of programs designed for the intellectually disabled.

The grounds of appeal

37 The applicant challenged the sentences on the following ten grounds:

1. The overall sentence imposed was unduly harsh and severe.
2. The sentencing judge erred in sentencing the applicant for an offence of aggravated sexual assault under the provisions of s61 J of the Crimes Act 1900 in respect of the offence which occurred on 30 August 2000.
3. The sentencing judge erred in determining that the offence of aggravated indecent assault on 4 August 2000 was an offence of the worst type.
4. The learned trial judge erred in determining that the seriousness of the offence of detain for advantage on 4 August 2003 was comparable to that committed by a co-offender, Mahmoud Chami, for the offence on 30 August 2000.
5. The learned sentencing judge erred in taking into account matters that were not part of the agreed facts or material properly before him.
6. The sentencing judge erred in making findings of fact adverse to the applicant which were not open to be made.
7. The learned sentencing judge erred in failing to give an appropriate discount for the applicant’s plea and to reflect his contrition.
8. The learned sentencing judge failed to give sufficient weight to the applicant’s personal circumstances.

9. The sentencing judge erred in failing to give any weight to the applicant’s assistance to authorities.

10. The sentencing judge failed to give sufficient weight to the applicant’s developmental disability and/or mental illness.

38 A number of these grounds overlap and we will deal with some jointly. We will return to a consideration of ground 1 later in these reasons.

Ground 2: The sentencing judge erred in sentencing the applicant for an offence of aggravated sexual assault under the provisions of s61(J) of the Crimes Act 1900 in respect of the offence which occurred on 30 August 2000.

39 The Judge said that the sentences to be imposed for the offences of detain for advantage and the sexual assault committed against Ms C on 30 August should be the same as for the “similar offences” committed against Ms A and Ms B on 10 August. Sentences of eleven years and three months’ imprisonment were imposed for the aggravated sexual assault offences committed against Ms A and Ms B. It can be seen that the starting point for these sentences was fifteen years (prior to the twenty-five percent discount). The sentence imposed for the offence charged in count 11 was of the same length.

40 The offence charged in count 11 was not the aggravated offence under s 61J(1) which carries a maximum penalty of imprisonment for twenty years. It was a charge under s 61I of sexual intercourse without consent knowing the complainant was not consenting thereto. The maximum penalty for this offence is fourteen years’ imprisonment. It is apparent that the Judge overlooked that the offence charged in count 11 was not the aggravated offence. His starting point for this sentence (before the discount for the plea) was in excess of the maximum.

41 The Crown conceded that this ground was made good. In all other respects the Crown submitted that the sentences imposed were within the range of the Judge’s discretion and were not attended by error. In the Crown’s submission, this Court should intervene to the extent of correcting the error by a proportionate reduction in the sentence. This would produce a sentence of seven years, eight months and twenty-five days being a sentence representing seventy-five percent of the maximum discounted by twenty-five percent. In the Crown’s submission the non-parole period specified for this offence exhibited a marked degree of leniency and should remain. While this would produce a different proportion between the head sentence and the non-parole period it would still reflect the Judge’s finding of special circumstances. In light of the view that we have come to with respect to other grounds of challenge the Crown’s submission is rejected. Ground 2 is established.

Ground three – the sentencing judge erred in determining that the offence of aggravated indecent assault on 4 August 2000 was an offence of the worst type

42 The Judge found the offence of aggravated indecent assault committed against Ms E to be in the category of the worst case for such offences. The charge is provided by s 61M(1) and carries a maximum penalty of imprisonment for seven years. The facts that constituted this offence were that the applicant put his arm around Ms E’s waist and rubbed her legs before touching her on the vagina outside her clothes. The circumstance of aggravation was that Ms E was aged less than sixteen years. The Judge decided to impose the maximum sentence for this offence albeit he allowed a twenty-five percent discount for the applicant’s plea.

43 The Crown submitted that there were features of the offence that served to place it within the worst class of s 61M(1) offences. The complainant was a fourteen-year-old schoolgirl travelling in daylight on public transport, the offence was committed in the company of other young men, and was accompanied by degrading comments. The Judge found that the applicant played the leading role in this episode. These factors point to this offence as a serious one that required the imposition of a sentence of full-time custody. However, we accept the submission put on behalf of the applicant that it was an error to characterise an indecent assault that involved touching in the region of the vagina on the outside of the clothes as falling within the worst category of offences of aggravated indecent assault and as deserving of the maximum penalty. This is all the more so when regard is had to the applicant’s subjective case, including his age, level of intellectual functioning and the circumstance that he had not previously been sentenced to a term of imprisonment.

44 Ground 3 is established.

Ground four – the learned trial judge erred in determining that the seriousness of the offence of detain for advantage on 4 August 2003 was comparable to that committed by a co-offender, Mahmoud Chami, for the offence on 30 August 2000

45 The applicant challenges the Judge’s assessment of the seriousness of the offence of detaining Ms E for advantage, noting that his Honour considered it to be comparable to the s 90A offence committed by a co-offender, Chami, with respect to Ms C. The applicant submits that this characterisation of the objective seriousness of the offence is too extreme. Senior counsel for the applicant pointed to the findings that the Judge had made in sentencing Chami:

· Chami went to the Trotting Club car park as the result of a telephone call from Bilal Skaf, knowing that Ms C had been sexually assaulted by numerous men;

· At the scene he persuaded her, by false representations, to get into his car, which she did;

· While he was driving his companions in the car sexually assaulted Ms C;

· On arrival at an industrial estate in Chullora she was further detained in his car while Bilal Skaf and another offender had sexual intercourse with her;

· She was detained by Chami and his co-offenders until another car load of young men arrived and she was handed over to them;

46 It will be recalled that the Judge was sentencing the applicant for the s 90A offence taking into account four further offences on a Form 1. These comprised the two assaults on Ms E, an aggravated indecent assault and committing an act of indecency. It was necessary to reflect these offences in the sentence for the s 90A offence in the way explained in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCA 518 by giving greater weight to both personal deterrence and to retribution. This detracts from the force of the applicant’s submission. At the time the Judge made the comparison he referred in terms to the circumstance that the applicant had asked that four further offences be taken into account in sentencing him for this offence (ROS 31). In the result we do not find that the imposition of a sentence of the same length (but subject to the twenty-five percent discount for the plea of guilty) as that imposed on Chami to have betrayed error. Ground 4 fails.

Ground five – the learned sentencing judge erred in taking into account matters that were not part of the agreed facts or material properly before him

Ground six - the sentencing judge erred in making findings of fact adverse to the applicant which were not open to be made

47 The applicant’s sentence hearing took place on 8 August 2002 and sentence was pronounced on 23 August 2002. By this time the Judge had presided over trials involving co-offenders charged with offences relating to the incidents in Northcote Park involving Ms A and Ms B and the later offences involving Ms C. His Honour commenced his remarks on sentence by referring to Bilal Skaf as the leader of a brutal gang of rapists and of him and his gang having spread terror in Sydney in August 2000. His Honour continued:

“The activities of the gang were organised by the use of mobile phones and there was a considerable degree of planning and co-ordination involved in each set of attacks” (ROS 1.5)

48 The applicant complains that he entered his pleas upon the agreed facts, which are set out in paras [6], [12] and [17] above and that the Judge in sentencing him took into account material, in some cases derived from the earlier trials, that did not form part of the agreed facts. The findings that the activities of the gang were organised by the use of mobile phones and that a considerable degree of planning and co-ordination was involved in each of the offences is submitted to be one that was not open on the facts upon which the applicant was to be sentenced.

49 With respect to the first group of offences, principal complaint is made that the Judge found that there were frequent telephone calls between the applicant and Bilal Skaf and that it was likely that the applicant had been speaking to Bilal Skaf when he said “I’ve got a slut with me bro, come to Punchbowl.” In the applicant’s submission it was not open to the Judge to find that he and the Bilal Skaf were planning to abduct Ms E for the purposes of raping her (ROS 7.8). His Honour returned to this finding in assessing the objective gravity of the offences. He said this (ROS 8.7):

“These offences were very serious. H and the others were prepared to attack a fourteen year old, innocent and helpless victim on a public train, assault her, insult her, sexually molest her and kidnap her, obviously intending to do worse after they got off the train”.

50 With respect to the offences committed on 10 August there were substantial passages in the Judge’s remarks that were drawn from material that did not form part of the agreed statement of facts, including from the trial of Bilal Skaf, Mohamed Ghanem and Belal Hajeid. His Honour found that the plan that the eight men should sexually assault the two complainants was hatched before the van got to the park at Greenacre. He observed at (ROS 10.4):

“I come to this conclusion because there was evidence in the trial which was in no doubt that there was almost constant communication between the men in the two vehicles from the time they left Chatswood and the time they arrived at Greenacre. This communication was by mobile phone calls. Some of it was in English, but much of it was in Arabic.”

51 The Judge recited a lengthy account of the complainants’ journey from the Chatswood shopping centre to Northcote Park, including that Bilal Skaf and another offender had repeatedly pressured both complainants for oral sex in the course of the journey. Next his Honour recorded events relating to the assaults on Ms A and Ms B that occurred at the park before the red car, in which the applicant was travelling, arrived. The Judge, wrongly, found that the applicant had returned after sexually assaulting Ms A, and that he threatened her and forced her to fellate him a second time (ROS 16.8).

52 In written submissions it was contended that the Judge took into account a number of facts relating to assaults committed on Ms B when he was not present. It was said that the agreed facts did not assert that he was aware that Ms B had been forced to have oral sex at the toilet block before the applicant arrived. The Judge did refer to an incident in which Ms B had been subjected to forced oral intercourse before the applicant arrived on the scene. His Honour stated in terms that this was not an act in respect of which the applicant had been convicted (ROS 17).

53 With respect to the third set offences committed on 30 August the applicant’s principal complaints were of the following matters to which the Judge referred, which did not form part of the agreed statement.

The applicant handed Ms C over to an offender in the black car who vaginally raped her. She was then orally raped by another of the men in the car. The applicant was not present when these rapes occurred but he knew that they would occur (ROS 22).
The applicant was in mobile contact with Bilal Skaf and arrangements were made to hold Ms C until Skaf, Chami, Ghanem and Nike Sam arrived (ROS 22).
The men in the black car, including H, told the men in the red car of the rapes that had occurred prior to their arrival (ROS 22).
The conclusion that the occupants of the red car were aware of the rapes committed earlier was reinforced by the contents of the ERISP conducted by the police with Mohammed Chami. The ERISP was not evidence in the case against the applicant.
The applicant participated in the ‘gang rape’ of Ms C (ROS 24.4).

54 The Crown acknowledged that the Judge referred to facts with respect to each group of offences that were not the subject of the agreed statement. In the Crown’s submission it was open to his Honour to do so, since the whole of the Crown brief had been tendered at the sentence hearing on 18 March 2002. The brief contained the statements of each of the complainants and the material that is the subject of complaint in ground 5 is to be found in the statements of the complainants. In the Crown’s submission, to the extent that the Judge referred to evidence that had been given at the trials of co-offenders, this was material that was, in any event, in evidence in the applicant’s case in the statements of the complainants.

55 It appears that after the parties reached agreement as to the factual basis on which the applicant was to enter his pleas of guilty, the Crown signified its intention to also tender its brief of evidence and the proceedings were listed on 18 March so that the Judge could rule on a number of objections foreshadowed by the applicant’s counsel. The brief was tendered and received subject to objections (18/03/02 T 2). The applicant’s counsel handed up a schedule of objections to passages in the complainants’ statements. She observed that the applicant’s pleas followed protracted negotiations between Crown Prosecutors (other than the Crown Prosecutor appearing on this day) and herself, and that it was proposed that the applicant would plead guilty to the subject offences on the understanding that a number of other charges that were pending in the Children’s Court would be withdrawn. She went on to submit:

“Following the negotiations in relation to the pleas, facts were prepared and your Honour has those in the folder that you have before you. There are three documents, facts for sentence, one in relation to each of the three matters. They were carefully negotiated and I think Mr Taylor on the last occasion was very careful, well he informed your Honour that the negotiations had taken place with the consent of the victims and everything was above board and so on and so forth. The difficulty we now have is that following those facts being prepared, the Crown now wish to tender a large amount of material mostly in statement form, which relates to the matters which are no longer before the Court or the matters that are to be withdrawn” (18/03/02 T 5.11-23).

The Crown Prosecutor responded to this submission stating that there were two bases upon which the material, additional to the agreed facts, was to be placed before the Judge. The first was that it was relevant to the weight to be given to the victim impact statements. The Crown Prosecutor noted that “obviously what these victims say in their impact statements could not be entirely – the blame could not entirely be laid at the feet of this accused…” (18/03/02 T 5.42-45). There followed some further discussion and in the event the Crown Prosecutor did not come back to identify the second basis on which the material was tendered.

56 A victim impact statement is a statement that contains particulars of any personal harm suffered by the victim as a direct result of the offence (s 26(a) of the Sentencing Procedure Act. If it is received and considered by the court in accordance with the provisions of Pt 3 Div 2 of the Sentencing Procedure Act it should refer only to the effect on the victim of the offence before the court: R v Bakewell (unreported) NSWCCA, 27 June 1996 and R v MA [2001] NSWCCA 30. It is to be observed that the victim impact statements were relatively brief and did not detail incidents that did not involve the applicant. They referred in general terms to the great distress, loss of self esteem and loss of confidence that the offences had occasioned in each case. The statements were not the subject of objection.

57 The tender of the Crown brief in order to support acceptance of the assertions contained in the victim impact statements was misconceived. The relevance of the material contained in the Crown brief that went outside the agreed facts was not identified by the Crown at the sentence hearing.

58 In a case in which agreement has been reached on the factual basis on which an offender is to plead guilty following a “plea bargain” (as appears to have happened in this case), the wisdom of tendering the entire Crown brief in addition to the agreed statement may be doubted. It runs the risk that the sentencer will take into account facts that would aggravate the offence contrary to the principles in R v De Simoni (1981) 147 CLR 383; see too R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at 180. In this case the statements of the complainants contained descriptions of conduct for which this applicant was not criminally responsible. Some of this material found its way into the Judge’s reasons and it formed the basis of findings that were adverse to the applicant.

59 As the Crown submits, the Judge was not bound by the parties agreement as to the factual basis on which the applicant was to be sentenced: Chow v DPP (NSW) (1992) 28 NSWLR 593 per Kirby P at 606. Where material in addition to an agreed statement is in evidence at a sentence hearing it is open to the judge to make a finding of facts upon it, notwithstanding that these may not accord with the agreed facts. However, the requirements of procedural fairness commend that when a judge intends to go outside the agreed statement of facts by recourse to other material in evidence and to sentence an offender on a basis that differs in substance to the agreed facts, he or she should inform the parties of that intention in order to give them an opportunity to deal with it: R v Uzabeaga [2000] NSWCCA 381 at 458-459, [34] – [38].

60 In this case the Judge indicated to counsel during the course of submissions on 18 March that it was his intention to sentence on the basis of the agreed statements of facts:

“MIKHAIEL: Facts have been agreed your Honour, that’s all I’m saying, facts have been agreed in relation to each of these matters.
HIS HONOUR: Well that’s what he’ll be sentenced on” (18/3/02 T 10.41-45).

61 The Judge did not rule on the objections contained in the schedule. When the matter came back before him on 8 August 2002 the schedule was tendered and his Honour indicated that he did not propose going through the document on a line by line basis dealing with the particular objections. His Honour returned to the factual basis on which he was proposing to proceed:

“HIS HONOUR: …[S]o when it comes to sentencing your client I intend to ignore facts that have nothing to do with it but I do intend to refer the matter of background to other matters…” (08/08/02 T 2.29-31).
MIKHAIEL: I just clarify the position in relation to one thing. Your Honour said a moment ago you intended to refer to other matters by way of background. Does your Honour intend to refer to matters of evidence that arose in previous trials by way of background in sentencing Mr H?
HIS HONOUR: Sure.
MIKHAIEL: The difficulty with that for me your Honour is that I didn’t appear at those trials, I wasn’t privy to what was said at those trials and it may well be that something was said against the interests of Mr H that I’m not aware of” (08/08/02 T 3.10-23).

62 Some of the matters to which the Judge referred that did not form part of the agreed facts are of relatively little moment: the agreed facts relating to the offences of 10 August do not record that one of the offenders assaulted Ms B by snatching her necklace and breaking it. In supplementary submissions the Crown notes that no objection was made to the paragraph in Ms B’s statement that records this assertion. It remains that in relation to each of the three groups of offences his Honour’s remarks on sentence travel outside the agreed facts and involve findings that were based on evidence led in other proceedings.

63 The Judge found that the applicant planned to abduct Ms E for the purpose of raping her and so that other men might rape her. He said this:

“H got a call on his mobile phone and said to the caller, in English: “I’ve got a slut with me, bro, come to Punchbowl.” Having regard to the other evidence to which I referred, and to evidence given in the trials relating to offences against Misses A, B and C that H and Bilal Skaf were frequent callers to one another, it seems likely to me that he was in fact talking to Bilal Skaf. He certainly was not talking to any of his brothers, who are completely innocent men. I am satisfied beyond reasonable doubt that he and the caller were planning to abduct Miss E for the purposes of rape by H and other men” (ROS 7).

64 It was not open to the Judge on the applicant’s pleas of guilty to the counts involving Ms E (and the matters on the Form 1) and on the material that was in evidence to sentence him on the basis that he and Bilal Skaf had planned to abduct MS E for the purpose of himself sexually assaulting her and of others sexually assaulting her.

65 The Judge found that the applicant was a party to a plan with Bilal Skaf and others to force oral sex on Ms A and Ms B before he arrived at the park (ROS 12). In coming to this view his Honour took into account the evidence at the earlier joint trial. He said this:

“I cannot be sure precisely when the plan that these eight men should sexually assault their two victims was hatched, but the facts establish beyond reasonable doubt, in my opinion, that the plan had been agreed on before the van got to the park at Greenacre. I come to this conclusion because there was evidence in the trial which was in no doubt that there was almost constant communication between the men in the two vehicles from the time they left Chatswood and the time they arrived at Greenacre. This communication was by mobile phone calls. Some of it was in English, but much of it was in Arabic.
In my opinion, the almost constant telephone communication, together with the fact that the men in the red car, as I shall recount, arrived at the park at Greenacre just after Bilal Skaf told Miss A that she would be bashed if she did not have oral sex with him, enables me to conclude beyond reasonable doubt that the crimes committed by Bilal Skaf, Ghanem, Hajeid and their companions were carefully planned and well co-ordinated” (ROS 10).

66 His Honour found that also observed in dealing with the offences of 10 August:

“The evidence at the trial established that each of the accused and some of the others had regular mobile phone contact with one another. I have set out earlier how these phones were used to coordinate the arrival of the red car just as Bilal Skaf was prophesying what would happen to Miss A if she did not co-operate with him” (ROS 18).

67 It appears the related findings that the applicant was a party to a plan with Bilal Skaf to sexually assault the two victims and that these offences were carefully planned and well co-ordinated was based at least in part on the evidence given in the trial. It was not open on the agreed statement of facts.

68 In these respects the Judge’s factual findings put a more serious complexion on the applicant’s culpability for the offences to which he pleaded guilty than the agreed facts allowed and were based on material that was not in evidence.

69 It is conceded by the Crown that his Honour erred in finding that the applicant sexually assaulted Ms A on a second occasion.

70 In the case of the offences of 30 August, we consider that it was not open to the Judge to find that the applicant had made arrangements to hold Ms C until Bilal Skaf and three other men arrived in the red car (ROS 22). This conclusion appears to have been on his Honour’s view that the applicant spoke to Bilal Skaf by telephone at the time (ROS 22). The agreed facts recorded only that the applicant had been in regular contact with his co-offenders throughout the period from 9:00pm on 30 August until 1 September.

71 Grounds 5 and 6 have been established.

Ground seven – the learned sentencing judge erred in failing to give an appropriate discount for the applicant’s plea and to reflect his contrition

72 In written submissions filed on the applicant’s behalf it was contended that he should have received a discount of the order of thirty-five percent for his pleas of guilty in recognition that they demonstrated remorse in addition to their utilitarian value. The reasons that a discrete discount is allowed for the utilitarian value of a plea of guilty were explained in R v Thomson [2000] NSWCCA 309; 49 NSWLR 383 per Spigelman CJ at 413-415, [126] – [135]. In that case, the Chief Justice observed:

“[115] There is considerable force in the proposition that the combination of utilitarian elements with remorse and witness vulnerability involves the addition of incommensurable factors. The benefits to the criminal justice system as a whole, which flows from a plea of guilty, particularly an early plea of guilty, are not related to the circumstances of the offence or to the conduct of the offender …
[116] The element of remorse which is said to be reflected in a guilty plea and the benefits to witnesses, particularly victims, are of a different quality. Remorse is directly concerned with the circumstances of the offender and may have significant implications for other objectives of the sentencing process.”

The Court rejected the submission that had been advanced by the Crown and the Attorney General in that case that the guideline should encompass all aspects of the sentencing considerations embraced by the plea.

73 In Markarian v R [2005] HCA 25; 79 ALJR 1048 at 1057, [37] Gleeson CJ, Gummow, Hayne and Callinan JJ cite the joint judgment in Wong v R (2001) 207 CLR 584 at 611-612, [74] – [76] including:

“To take another example, to ‘discount’, a sentence by a nominated amount, on a count of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred in R v Gallagher ((1991) 23 NSWLR 220) when he said that:
‘It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.’
So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.” (Emphasis in original).
Their Honours went on to observe that this Court in R v Sharma (2002) 54 NSWLR 300 had endorsed an approach of instinctive synthesis as a general rule, but that it accepted as a qualification to that rule that departure from it may be justified to allow for separate consideration of the objective circumstances of the crime (at 1058, [38]) (emphasis added.)

74 The submission that the Judge erred by failing to quantify a discount for the applicant’s pleas of guilty that included a component representing the contrition that they evidenced is rejected.

75 His Honour found that the applicant was remorseful for his crimes and indicated his intention to moderate the sentences to be imposed to take this into account. The question that remains is whether that intention was reflected in the sentences. This is raised by grounds 1 and 8, to which we will come. Ground 7 fails.

Ground nine – the sentencing judge erred in failing to give any weight to the applicant’s assistance to authorities

76 The applicant was arrested in connection with the offences involving Ms C on 2 September 2000. He participated in two electronically recorded interviews on that day. The contents of these interviews are not relied on for this ground.

77 On 14 September 2000 the applicant made a statement to the police. This was as the result of his initiative in contacting the police and indicating his desire to assist them with their inquiry. In this statement he named each of the four persons with whom he had been present at the time Ms C encountered the group on the train. He provided information concerning the addresses of the other young men and the clothing they had been wearing on 30 August at the time of these events.

78 The contents of the statement of 14 September was selective and, in some respects, misleading. The applicant described events at the Bankstown Trotting Club car park in this way:

“[17] I sat outside the Mazda for about five minutes and the girl was in the car with the guy who owns it by herself with him. Then Bilal Skaf pulled up in a red Corolla. It was an 86 or 88 model twin cam. Bill was in it with 3 other blokes. Mohammed Skaf was not in it so he must have called Bill to let him know where he was.
[18] Bill said to the girl, “Come, we’ll give you a lift and we’ll look after you”. She then went with him and got into the red Corolla and they took off straight away and I don’t know where they went.”

79 The applicant admitted in the agreed statement of facts that when the vehicle arrived at Bankstown Trotters Club Ms C had been left in his company and that the two of them had waited in a shed in the car park together. It was at this time that he sexually assaulted Ms C.

80 The Crown submit that the only information identifying co-offenders given by the applicant in the statement of 14 September was with respect to persons whose involvement in the offences was already known to the police. This assertion was not challenged by the applicant’s counsel on the hearing of the application.

81 Section 23(1) of the Sentencing Procedure Act allows the Court to impose a lesser penalty having regard to the degree to which the offender has assisted law enforcement authorities in the investigation of the offence. In deciding whether to impose a lesser penalty the court is to take into account the matters set out in subs (2)(a) – (j). These include consideration of the significance and usefulness of the offender’s assistance to the authority or authorities concerned and the truthfulness, completeness and reliability of any information.

82 The Judge’s determination not to impose a lesser penalty by reason of the applicant’s assistance to the authorities, as evidenced by the contents of the statement of 14 September 2000, was not an error. It was open to the Judge to consider that there was little or no utility to the authorities in the provision of information of which they were already aware and that the account was, in any event, a selective one. The applicant’s willingness to provide the police with the statement of 14 September while not of value in an investigative sense was further evidence of his contrition. As we have noted the Judge accepted that the applicant was contrite for his offences. A question remains whether this finding was adequately reflected in the sentences that he imposed. Again, this is raised by grounds 1 and 8.

83 Ground 7 fails.

Ground 1: the overall sentence imposed was unduly harsh and severe.

Ground 8: the learned sentencing judge failed to give sufficient weight to the applicant’s personal circumstances

Ground 10: the sentencing judge failed to give sufficient weight to the applicant’s developmental disability and/or mental illness

84 Ground 8 complains of a failure to give sufficient weight to the applicant’s personal circumstances. The circumstances taken up by this ground are the applicant’s youth, absence of significant record of criminal offending, family background and intellectual disability. It is not said that the Judge failed to advert to the evidence of each of these circumstances nor that he failed to correctly state the principles with respect sentencing to offenders with a mental condition. The complaint is that in the result his Honour must be taken to have given insufficient weight to one or more of these circumstances. Ground 8 thus raises the same matters for consideration as are raised by Ground 1.

85 Ground 10 was an additional ground for which the applicant was granted leave to rely on the hearing of his application. In support of this ground he sought to rely on fresh evidence, which comprised the affidavit of his solicitor, Anne Roy, to which was annexed a further report of Dr Westmore dated 14 July 2005, a report of Julie Malone, a clinical psychologist who is employed by the Department of Corrective Services and a document signed by Dr Neilssen, a psychiatrist, described as a “medical hold”.

86 As we have noted above, the Judge took into account the reports of Dr Wade and of Dr Westmore. The former favoured the view that the applicant’s symptomatology fitted into a long-term pattern of paranoid schizophrenia. Dr Westmore reported that the applicant was difficult to assess. He described having some type of “voice”, but that this was not completely consistent with an auditory hallucination and Dr Westmore was not, on the limited history available, able to diagnose that experience as a psychotic one.

87 Dr Westmore prepared a further report dated 14 February 2002, which set out the results of an examination of the applicant conducted on 11 February 2002. Dr Westmore considered that the applicant remained difficult to assess. He reported:

“His mood state was subdued and despondent. I could not identify any psychotic features in his presentation and he presented as being of compromised intelligence. He does appear to have some insight into the wrongness of his behaviour, at least he is able to verbalise this in a limited fashion. To what extent his insight extends to emotional understanding is unclear…
A definitive diagnosis regarding H cannot be provided at this time. Psychiatrists are reluctant to diagnose personality disorders in people as young as H and extended contact with him in a clinical setting would need to occur before the full extent of his personality difficulties would become evident and definable. Likewise, it is uncertain whether he has a primary psychosexual disturbance although this is probably unlikely and the offending behaviour is more consistent with an individual with a personality disorder with poor impulse control and impaired judgment. These latter characteristics arise from his intellectual difficulties. … It is possible advancing age will produce some maturity in his personality development and this may reduce his future risks. Without long-term appropriate assistance, however, age and maturation may simply increase his strength without having any impact on his ability to appropriately direct his physical and sexual resources.
There are obvious concerns about the offending behaviour, the fact that there were several events over a period of time and the nature of the offences themselves. His behaviour appears to demonstrate a disregard for the rights and feelings and safety of others and there is degrading of the victims.”

88 Also in evidence at the sentence hearing was the report of Dr Helen Somerville, a developmental physician. She reported on an examination of the applicant conducted in May 2002. She described the applicant as being a young man with a mild intellectual disability and a long history of short attention span, learning difficulties, aggression (mostly verbal) and poor impulse control. She considered an earlier assessment that placed him as functioning within the ten – twelve-year age range to be apt. She also commented on his “clear mental health problems typified by his impulsivity and short “fuse”, and aggression when angry”.

89 The Judge did not come to a concluded view about whether the applicant was suffering from a psychiatric condition. He approached the matter on the basis that the applicant was “intellectually and possibly mentally disabled”(ROS 29.9). Senior counsel submitted that the affidavit of Ms Roy should be received as fresh evidence on the basis that the medical evidence contained in the reports annexed to it demonstrated the full implications of the applicant’s mental illness which had not been known at the date of sentence: R v Bailey (1988) 35 A Crim R 458; R v Wickham [2004] NSWCCA 193.

90 It is not necessary that the question of whether the overall sentence is excessive taking into account the applicant’s personal circumstances including his mental condition be decided on the basis of the material that was before the Judge. Error has been demonstrated with respect to grounds 2, 3, 5 and 6. These errors are such that it is necessary for the Court to exercise its own discretion in order, firstly, to determine whether any lesser sentences are warranted in law. In these circumstances it is appropriate to receive the affidavit of Ms Roy.

91 The following emerges from the affidavit of Ms Roy. Since the applicant’s transfer to an adult prison he has been housed in segregation at the Goulburn Gaol for prolonged periods. Ms Roy has visited him at that facility and has noted an apparent decline in his mental state when he is housed there. This is supported by her examination of the records of the Department of Corrective Services, which contain numerous references to improvements in his behaviour when he is transferred from segregation to the Disability Unit. It also receives support from the report of the Department’s psychologist, Ms Malone.

92 While being held in the segregation unit at Goulburn goal the applicant reports that he spends twenty-three hours out of twenty-four without contact with the other inmates. He has minimal access to counselling or educational programs or psychiatric treatment.

93 Ms Roy has also visited the applicant on occasions when he has been housed in the Disability Unit at Long Bay. On these occasions he has been less withdrawn and more communicative. From her conversations with Ms Malone and by reference to the Department of Corrective Services file, Ms Roy understands that the regime that has been recommended for the applicant by the Serious Offender Review Council is that he be held for alternate periods of six months in segregation at Goulburn and in the Disability Unit at Long Bay. The reason for this regime is said to depend in part on the seriousness of the applicant’s offences and in part on the circumstance that the Disability Unit at Long Bay is the only unit that is available to house an inmate on an A2 classification. There are other disability units that are able to house inmates who have a C classification. It would seem that the applicant will not be considered for a C classification for some time.

94 The significance of the document described as a “medical hold” signed by Dr Nielssen is that as at 5 May 2005 it records a diagnosis of “schizophrenia, mental retardation” and the reason given for the proposed medical hold is “acute exacerbation of severe mental illness. Transfer could be stabilised further, less access to treatment.” In her affidavit Ms Roy states that Dr Nielssen’s recommendation appears to have been ignored. This we were informed is a reference to the regime to which we have referred which will see the applicant spending alternating six months at the Goulburn Segregation Unit.

95 Ms Malone’s report which is dated 14 July 2005 comments on the improvement in the applicant’s behaviour during the period when he is housed in the Disability Services Unit. He has a tendency to “act out” when housed in segregation at Goulburn. Ms Malone observes the applicant is performing in the extremely low range across a number of performance measures and that he requires assistance to complete institutional forms, such as to add visitors to his telephone and visit list. He does not comprehend complex instructions and may become agitated and confused when he is directed to fulfil more than one task at a time.

96 Dr Westmore, in a report dated 14 July 2005, comments on his further examination of the applicant conducted on 11 July 2005. The applicant demonstrated paranoid thought processes, was notably depressed and at times tearful and distressed. Dr Westmore said the assessment was complicated by the applicant’s intellectual disability. The applicant was not able to say how long he had been in prison, apart from stating that it had been “a long time”. In the course of this interview the applicant provided a history that included that he had been sexually abused as a boy.

97 Dr Westmore reviewed the clinical notes of the applicant’s treating psychiatrist (it would appear these were notes of the treatment received at a time when the applicant was in D Ward at Long Bay). These were consistent with the applicant being mentally ill. Dr Westmore is of the opinion that the applicant suffers from paranoid schizophrenia. This opinion is based on his presentation, history and the contents of other medical reports. Dr Westmore confirmed a diagnosis of mild mental retardation based predominantly on his clinical presentation, but supported by the psychological test results. Dr Westmore considers it likely that the applicant suffers a personality disorder. He reported as follows:

“H is a twenty-year old man, the youngest of eight children. He suffers mild intellectual disability and a number of his siblings have learning problems with one sister apparently being quite disabled.
H suffers from a paranoid schizophrenic illness and mild mental retardation. … H is obviously a disadvantaged individual suffering a mental illness and being mentally retarded. In prison he has trouble mixing with large groups of people and he has been the victim of violence and he has also been violent himself towards other inmates. … I gather that the prison authorities are having some difficulty placing him into a suitable section because of the mixture of his various problems. …
This man will find incarceration an extremely difficult experience because of his psychiatric and intellectual problems.
The nature of the offending behaviour suggests that he was under-socialised as a juvenile and a lengthy period of incarceration will obviously only exacerbate that particular problem. His ability to express himself sexually has already been demonstrated to have been severely disturbed and distorted, again that problem will only be aggravated by a lengthy incarceration. It is likely that institutionalisation will be added to his list of various difficulties and his chances of achieving any type of educational advancement in custody is probably slight.”

98 The applicant stood for sentence in respect of three separate groups of offences involving serious sexual assaults carried out on young complainants in circumstances calculated to degrade them. Notwithstanding his youth and level of intellectual handicap, we consider that the Judge was right to impose sentences that placed emphasis on the need both to deter this offender and others who might be minded to commit offences of this description and to denounce the crimes. It remained necessary to recognise that this applicant’s level of culpability was to be assessed as less than that of his co-offenders by reason of his intellectual limitations. The Judge made allowance for the latter in his finding of special circumstances and in the determination of the non-parole periods. However, we consider there is force to the challenge advanced in grounds 1 and 8 that the overall sentence of twenty-five years exceeded the bounds of discretion. It follows that, in light of the errors that have been identified, we are of the opinion that lesser sentences are warranted in law.

Re-sentencing

99 The applicant had a minor record of offences, which had been proven in proceedings before the Children’s Court and in respect of which he had been subject to non-custodial orders. They are of no relevance in considering the present matters.

100 The applicant was a young person at the date of the commission of these offences. This Court has considered the principles to be applied in sentencing young offenders for offences of sexual violence in R v AEM Snr; KEM; MM [2002] NSWCCA 58 at [96] – [102]. At [171] the Court noted, in dealing with the young adult offender in that case, that the relative youth of an adult offender would rarely be an occasion to give less weight to general deterrence in cases of this description. In this case the applicant’s youth is to be considered in conjunction with his intellectual disability. The evidence was that he was given to behaving impulsively and that he followed the example set by those in his peer group. It is reasonable to consider that he had less ability than an ordinary youth of his age might have to reason that he should not associate himself with the callous and degrading conduct that was displayed towards each of the complainants in these three episodes of offending: see R v Henry (1999) 46 NSWLR 346 per Wood CJ at CL at [254].

101 The principles that apply in sentencing offenders with an intellectual handicap or other mental condition are well known and do not require restatement here: R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri (unreported) Court of Criminal Appeal, 18 March 1992; R v Engert (1995) 84 A Crim R 67. The applicant did have the capacity to understand that it was wrong to behave in the way that he did and while it is appropriate to moderate the sentences to be imposed upon him to take into account his intellectual handicap, in our view the degree of moderation is not such as subsume the need for the sentences to embody considerations of deterrence and denunciation: R v Wright (1997) 93 A Crim R 48 per Hunt CJ at CL at 50-51.

102 We do not consider the applicant’s paranoid schizophrenia to be of particular significance in assessing his culpability for his offending. The evidence does not suggest that his psychiatric condition was causally connected to the commission of any of these offences. He reported auditory hallucinations some time after being taken into custody. He has not given an account of auditory hallucinations or other psychotic experiences at the time of the offences. When Dr Westmore saw him closer to the time of these events it was not apparent that he was suffering from any psychiatric condition.

103 The foregoing does not mean that the applicant’s paranoid schizophrenia is not a matter that is relevant to his re-sentencing. The evidence on the application establishes that imprisonment will be significantly harsher for this applicant than for an ordinary young man of his age. In R v Tsiaras (1996) 1 VR 398 at 400, the circumstance that a custodial sentence would be more burdensome for a person suffering from mental illness was taken into account by the Court as favouring a reduction in sentence. This issue was touched on by Spigelman CJ in R v Israil [2002] NSWCCA 255 at [26]:

“Finally, a custodial sentence may weight more heavily on a mentally ill person and that may be a material consideration in determining the length of the sentence to be served. (See Tsiaras supra, at 400). However in Lauritsen (2000) 114 A Crim R 333 at [51], Malcolm CJ noted that this factor, identified by the Victorian Court of Appeal in Tsiaras, may not represent the law in Western Australia. It is unnecessary to determine whether this is the law in New South Wales. It appears to have been regarded as material in this Court in R v Jiminez [1999] NSWCCA 7 at [25]. I see no reason why this would not be so, but the matter was not fully argued.”

104 This Court has taken into account that a custodial sentence will bear more heavily on a prisoner by reason of ill health or because it will be served in protection as favouring a reduction in sentence: R Bailey ; R v Wickham; R v Durocher-Yvon (2003) 58 NSWLR 581 R v Kier [2004] NSWCCA 106. We consider, in light of the evidence in Ms Roy’s affidavit and taking into account Dr Westmore’s opinion set out at paragraph [95] above, that it is appropriate to reduce the sentences to be imposed on the applicant to some degree by reason of the fact that imprisonment is likely to be extremely difficult for him because of his psychiatric and intellectual difficulties.

105 We take into account the evidence of the applicant’s family background. His childhood was disrupted by his parents’ separation. His mother’s need to devote her attention to her more severely handicapped daughter, and the family’s relative poverty, led to the applicant not receiving the benefit of psychiatric treatment that he had been identified as needing. It remains the case that the applicant’s family is supportive of him and provide encouragement to him not to offend in the future. We approach the matter upon an acceptance of the Judge’s findings as to the sincerity of the applicant’s remorse. We also accept his Honour’s assessment that the applicant has reasonable prospects of rehabilitation assuming he receives the benefit of programs designed to assist those suffering from intellectual and mental disability.

106 The applicant’s youth, intellectual disability, psychiatric condition and the fact that this is the first time that he has been sentenced to a term of imprisonment are all factors that constitute special circumstances for the purposes of s 44(2) of the Sentencing Procedure Act. The Judge found special circumstances and imposed an effective non-parole period that was significantly less than three quarters of the overall sentence. This was in the context of sentences, which in the aggregate produced a term of twenty-five years’ imprisonment. The aggregate sentence that we propose is one of sixteen and a half years. The effective non-parole period of twelve years that we propose gives the applicant comparatively little benefit from the finding of special circumstances. This is because we consider an effective non-parole period of twelve years to be the minimum term that justice requires the applicant should serve in custody: Power v The Queen (1974) 131 CLR 623.

107 The applicant is entitled to the discount that the Judge awarded to reflect the utilitarian value of his pleas of guilty. The sentences will in each case be discounted by twenty-five percent on this account.

108 Turning to the first group of offences involving the complainant, Ms E, these offences were serious offences that required the imposition of substantial sentences of imprisonment, notwithstanding the subjective considerations to which reference has been made. They occurred in the course of sustained harassment of Ms E, a fourteen year-old school child, travelling on public transport. The experience must have been a most frightening one for Ms E surrounded as she was by these young men behaving in an aggressive and sexually explicit way. The offences were accompanied by the use of offensive and degrading language.

109 The sentences imposed by the Judge for the offences charges in counts one and two – fixed concurrent terms of six months imprisonment – are in each case appropriate. The Judge commenced the sentences for these offences on 22 November 2000, since the applicant had continuously been in custody since that date. His Honour structured the sentences so as to reflect a further period of 35 days pre-sentence custody by reducing the length of the sentence imposed for the offence charged in count 11 by this number of days and by making a like adjustment to the non-parole period for this sentence. We prefer to backdate the commencement of the first sentences to 18 October 2000, which gives full credit for the thirty-five days that the Judge allowed. The sentences of six months’ imprisonment imposed on counts 1 and 2 will in each case commence on 18 October 2000. They expire on 17 April 2001.

110 The Court considers that the sentence imposed for the aggravated indecent assault on count 3 should be a fixed term of eighteen months’ imprisonment. This will be concurrent with the sentences imposed on counts 1 and 2 and will date from 18 October 2000. It expires on 17 April 2002.

111 The Court considers that a fixed term of three years and nine months’ imprisonment should be imposed for the offence of detaining Ms E for advantage, which is charged in count 4. This sentence takes into account the four offences set out in the Form 1. This offence was bound up with the offences charged in counts 1, 2 and 3. The Court considers that it should be served concurrently with the sentences imposed for those offences so that it will commence on 18 October 2000 and expire on 17 July 2004.

112 In light of the sentences that are to be imposed for the remaining offences the Court does not consider it appropriate to specify non-parole periods for the sentences imposed for counts 3 and 4.

113 We now turn to the sentences for the offences committed on 10 August. We consider that the applicant should be sentenced for the offence charged in count 5 of detaining Ms A for advantage to a fixed term of three years’ imprisonment and that this sentence should be served partly cumulatively with the sentences imposed for the earlier offences. This sentence will commence on 18 October 2002 and to expire on 17 October 2005.

114 Count 7 charged the applicant with the aggravated sexual assault of Ms A. His liability in respect of this offence was as a principal in the second degree. For this offence the Court considers that he should be sentenced to a term of six years and nine months’ imprisonment to date from 18 October 2002. A non-parole period of four years will be specified. The non-parole period will expire on 17 October 2006.

115 The offence charged in count 8 was a further offence of aggravated sexual assault against Ms A. The applicant’s liability for this offence was as the principal in the first degree. He threatened Ms A that he would bash her if she did not give him a “head job”. He gestured towards her with a clenched fist, forcing her to perform oral sex on him. He held the back of her head and grabbed her breasts during the course of this episode. He ejaculated on Ms A and walked away saying, “thanks for nothing you cheap slut”. The two offences of common assault set out on the Form 1 are to be taken into account in sentencing the applicant for this offence. The Court considers that the applicant should be sentenced to imprisonment for nine years to date from 18 October 2002. This sentence will expire on 17 October 2011. A non-parole period of six years will be specified. The non-parole period will expire on 17 October 2008.

116 Count 6 charged the applicant with detaining Ms B for advantage contrary to s 90A of the Act. The Court considers that the applicant should be sentenced to a fixed term of imprisonment for three years for this offence. In view of the remaining sentences that are to be imposed on the applicant a non-parole period will not be specified for this offence. The sentence for this offence should be served partly cumulatively with the sentences imposed for the offences against Ms A. This sentence will commence on 18 October 2005 and expire on 17 October 2008.

117 Count 9 charged the applicant with the aggravated sexual assault of Ms B. The applicant’s liability for this offence was as a principal in the second degree. For this offence the Court considers that the applicant should be sentenced to a term of six years and nine months’ imprisonment to date from 18 October 2005. That sentence will expire on 17 July 2012. A non-parole period of four years will be specified. The non-parole period will expire on 17 October 2009.

118 The offence charged in count 10 related to the incident on 30 August. It charged the applicant with detaining Ms C for advantage. For this offence the Court considers that the applicant should be sentenced to a term of three years’ imprisonment to commence on 18 October 2009. This sentence will expire on 17 October 2012. In view of the further sentence to be imposed on the applicant it is not proposed to specify a non-parole period for this sentence.

119 The applicant was charged in count 11 with sexual intercourse with Ms C without her consent, this is the offence provided by s 61I of the Act. The maximum penalty for this offence is fourteen years’ imprisonment. This was a serious instance of an offence contrary to s 61I. The applicant knew that Ms C had been sexually assaulted by other men in the toilet block at the Marian Street car park before he drove her to the Bankstown Trotters Club. While he was alone with her in a shed at that location he asked her for sexual favours. She was still shaken by the previous assaults and asked if he was serious. He persisted, taking hold of her hand and forcing her to touch his penis. Ms C attempted to resist, but the applicant became angry, pushing her onto her knees, undoing his trousers and forcing her to perform oral sex on him. He was not wearing a condom and he ejaculated into her mouth. For this offence the Court considers that the applicant should be sentenced to a term of seven years and six months’ imprisonment to date from 18 October 2009. That sentence will expire on 17 April 2017. A non-parole period of three years will be specified. The first date upon which the applicant will be eligible for consideration of release to parole is 17 October 2012.

120 As noted, the effective overall sentence is one of sixteen years and six months’ imprisonment with a non-parole period of twelve years.

Formal orders
1. Leave granted to appeal against the severity of the sentences imposed.
2. Allow the appeal and quash the sentences imposed in the District Court; in lieu thereof the Applicant is sentenced as follows:
Count 1: Six months’ imprisonment to date from 18 October 2000. This sentence expires on 17 April 2001.
Count 2: Six months’ imprisonment to date from 18 October 2000. This sentence will expires on 17 April 2001.
Count 3: Eighteen months’ imprisonment to date from 18 October 2000. This sentence expires on 17 April 2002.
Count 4: (Taking into account the four offences on the form 1) Three years and nine months’ imprisonment to date from 18 October 2000. This sentence expires on 17 July 2004.
Count 5: Three years’ imprisonment to date from 18 October 2002. This sentence will expire on 17 October 2005.
Count 6: Three years’ imprisonment to date from 18 October 2005. This sentence will expire on 17 October 2008.
Count 7: Six years and nine months’ imprisonment to date from 18 October 2002. This sentence will expire on 17 July 2009. A non-parole period of four years is specified. The non-parole period will expire on 17 October 2006.
Count 8: Nine years’ imprisonment to date from 18 October 2002. This sentence will expire on 17 October 2011. A non-parole period of six years is specified. The non-parole period will expire on 17 October 2008.

Count 9: Six years and nine months’ imprisonment to date from 18 October 2005. This sentence will expire on 17 July 2012. A non-parole period of four years is specified. The non-parole period will expire on 17 October 2009.

Count 10: Three years’ imprisonment to commence on 18 October 2009. This sentence will expire on 17 October 2012.
Count 11: Seven years and six months’ imprisonment to date from 18 October 2009. This sentence will expire on 17 April 2017. A non-parole period of three years is specified. The first date upon which the applicant will be eligible for consideration of release on parole is 17 October 2012.
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