R v Haralabidis, Lazaros and Petropoulos, Timotheos

[2010] NSWDC 175

CITATION:	R v Haralabidis, Lazaros and Petropoulos, Timotheos [2010] NSWDC 175
JUDGMENT DATE:	29 January 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Lazaros Haralbidis: Sexual assault (Count 4): Sentenced to a minimum term 18 months; balance of term of 6 months. Aggravated sexual assault (Count 5): Sentenced to a minimum term 2 years and 6 months. Balance of term of 2 years. Aggravated sexual assault (Count 6): Sentenced to minimum term 2 years. Balance of term of 2 years. Aggravated sexual assault (Count 7): Sentenced to minimum term 3 years. Balance of term of 3 years. Aggravated sexual assault (Count 8): Sentenced to minimum term 3 years. Balance of term of 3 years. Aggravated sexual assault (Count 9): Sentenced to minimum term 2 years. Balance of term of 2 years. Aggravated sexual assault (Count 10): Sentenced to minimum term of 2 years to commence. Balance of term of 2 years. Aggravated sexual assault (Count 11): Sentenced to minimum term 2 years. Balance of term of 2 years. Aggravated sexual assault (Count 12): Sentenced to minimum term 2 years. Balance of term of 2 years. Aggravated sexual assault (Count 13): Sentenced to minimum term 2 years and 6 months. Balance of term of 2 years. Overall Sentence 6 years 6 months. Non-Parole Period 3 years 6 months. Timotheos Petropoulos: Aggravated sexual assault (Count 5): Sentenced to minimum term 2 years. Balance of term of 2 years Aggravated Sexual Assault (Count 6): Sentenced to minimum term of 2 years and 6 months. Balance of term of 2 years. Aggravated sexual assault (Count 7): Sentenced to minimum term of 2 years. Balance of term of 2 years. Aggravated sexual assault (Count 8): Sentenced to minimum term of 2 years. Balance of term of 2 years. Aggravated sexual assault (Count 9): Sentenced to minimum term of 2 years and 6 months. Balance of term of 2 years. Aggravated sexual assault (Count 10): Sentenced to minimum term of 3 years. Balance of term of 3 years. Aggravated sexual assault (Count 11): Sentenced to a minimum term of 2 years and 6 months. Balance of term of 2 years. Aggravated sexual assault (Count 12): Sentenced to a minimum term of 2 years and 6 months. Balance of term of 2 years. Aggravated sexual assault (Count 13): Sentenced to a non-parole period of 2 years. Balance of term of 2 years. Over all Sentence 6 years Non-Parole Period 3 years.
CATCHWORDS:	Criminal Law - Sentencing - Aggravated sexual intercourse without consent (in company) - complainant aged 17 - common purpose - threesome for sexual activities - sentence after jury trial - basis upon which sentencing facts to be found - initial contact made via internet - meeting arranged with initial contact - second offender also attends with initial contact - driven to nearby park - offences in company occur in car - simultaneous penile/ vaginal, penile/anal and fellatio - swapping positions - video footage taken with mobile phone camera - mid-range offences qualify for standard non-parole period - standard non-parole period not imposed - offenders' youth - prior good character - unaware of psychological consequences of conduct.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Gladue v The Queen [1999] 1SCR 688 [80] R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] 1 NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Gebrail unreported NSWCCA 18 Nov 1994 R v Hartikainen unreported NSWCCA 8 June 1993 R v Pay [1999] NSWCCA 40 [7] R v Way (2004) 60 NSWLR 168 Hearne (2007) 124 A. Crim. R. 457
PARTIES:	Regina Lazeros Haralbidis Timotheos Petropoulos
FILE NUMBER(S):	2009/6182; 2009/6181
COUNSEL:	Crown: C Patrick Defence (for Haralbidis): W Terracini SC , C Heazlewood Defence (for Petropoulos): B Longville

JUDGMENT
1. Lazeros Haralabidis and Timotheos Petropoulos are both well presented young men who had never been in trouble with the law before 5 April 2008. On 16 September 2009 at Parramatta District Court each was indicted on charges relating to the sexual assault of one DV, a seventeen year old girl on 5 April 2008. Haralabidis was indicted upon thirteen charges. His friend Petropoulos was indicted upon nine charges. Those nine charges were said to be offences committed in circumstances where Petropoulos and Haralabidis were pursing a common purpose; to have three way sexual intercourse with DV.

2. The trial of the issues arising out of the various charges lasted a month. On 16 October 2009 the Parramatta jury found both accused guilty of the nine charges of aggravated sexual assault; the circumstance of aggravation being that each was in the company of the other. Haralabidis was also found guilty of having unlawful sexual intercourse with DV (count 4). He was found not guilty of the other matters he had been indicted upon. Today each young man is to be held accountable for his criminal conduct at Beaman Park on the night of 5 April 2008.

3. As the sentencing judge, it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these offences before this Court, committed these offenders, harming this victim in this community; Gladue v The Queen [1999] 1SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal and subjective to each of the offenders. The starting point for these assessments requires me to make findings of fact from the evidence before the jury and sentencing evidence before the Court relating to the offence and to the offender.

4. Each offenders’ rehabilitation prospects will have to be assessed, even if looking through a glass darkly.

5. Before any sentence can be made, there are likely to be technical questions relating to whether any of these offences attracts a standard non-parole period and if so, the length of the parole period that will finally be allocated and ultimately the term of imprisonment or other penalty to be imposed for these offences. None of those things can be done until the primary facts have been established. What weight needs to be given to all of these matters against an imperative that all sentencing should have as its primary focus; the protection of the community will also need to be determined; see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

6. Each having been found guilty by a jury, it falls to me to determine the facts that stand against each for sentence. The facts as I find them to be must reflect the jury’s verdict and the path taken by the jury to reach that verdict. In forming my view of the facts, I am not bound to find facts at the extreme end of favourability or un-favourability to any party in this litigation. The Crown submitted that given the verdict, wherever facts were in contest between the accused on the one hand and the Crown on the other, I should reject the accuseds’ version. A global statement such as that cannot be right. Should the contest relate to proof of an essential element, those facts which are central to the proof of that element, whatever their source, may be accepted as supporting the jury verdict.

7. It is likely most of those facts will be found in the Crown case. But there are other facts not necessarily essential to the proof of an essential element where the proposition advanced by the Crown can have no great strength.

The Facts

8. The Crown has attached to his submissions a document entitled “prosecution summary of facts proved at trial”. My fact finding has relied extensively, but by no means exclusively upon that document. Neither accused's counsel argued that the document was inaccurate or lacked objectivity. I am satisfied that what I have drawn from it properly and fairly puts the facts on sentence for both accused.

9. In March 2008 the complainant, DB (DOB 1991) while on the MySpace Website on her family’s computer came across an image of Haralabidis. She liked it and included him as one of her contacts. An email was automatically sent to his email address. He replied to her using the MSN site which allowed for instant messaging. They began communicating with each other. Thereafter the two had almost daily half hour contact.

10. About a week before the offences they exchanged phone numbers. From 29 March 2008 they began having frequent telephone contact, including late night calls. They discussed meeting in person. After one failed attempt, Haralabidis persuaded her to meet with him. On 5 April they agreed to meet. She told her mother she was going out to the city to visit friends from school. They agreed to meet in a park at Croydon; the suburb in which she lived. About 7.30pm she left her home, walking to Croydon Park. The accused arrived there about 7.45 and they met in person for the first time.

11. Petropoulos was also present in a small hatchback he had driven Haralabidis to the park. She approached Haralabidis, who by this time was out of the car. They both said hello. She saw Petropoulos in the car and asked who he was. Haralabidis said, “He’s just a mate. I couldn’t drive. I had to get someone to drive me”. He did not have a license.

12. When they first met, he greeted her with a kiss on the cheek. She thought nothing of it. She entered into the car and sat in the rear seat. Petropoulos then drove all of them to Beaman Park at Earlwood. She was told they were going to a park. She asked what they would be doing. Haralabidis said they were just going to hang out.

13. They arrived at the park. There were no other cars or people there. Lighting was few in the park. There were several areas of darkness. The two offenders alighted from the car. Initially she remained within the car. Haralabidis asked her to come out. She said “No, it was a bit cold.” This was a response she made because she was not keen to leave the car. Haralabidis persisted “No, no come out.” He pushed the front seat forward.

14. She alighted from the vehicle and sat on a little paved area near a fence. He sat next to her and asked if he looked like his picture. She said, “yes". He came close and tried to kiss her, but she moved her face to the side. Haralabidis left to talk to Petropoulos. He returned and said to the complainant “Lets go for a walk.” She followed him into the park, some fifty metres to a secluded area bound by a graffiti covered wall.

15. Four metres or so from the wall Haralabidis started kissing her. She returned the kiss for a few seconds and then stopped. Haralabidis moved his arm around her waist and walked her towards the wall. He sat with his back against the wall. He had a hand on her ankle and told her to sit down on him. She stood there. He repeated said to sit down on him using a stricter or stronger tone, as she thought. She sat on him because she was scared.

16. Haralabidis went directly to the topic, “What colour underwear are you wearing?” She said “Just underwear.” He put his hand into her pants, pulled up part of her underwear and said “Oh pink. I was hoping you were wearing red.” He said “You’re wearing shorts. You should have worn a skirt. Take it off.” She did not respond. In a stronger voice he said “Take it off.” Scared, she did as she was asked and took her shorts off. Again he said “Take it off,” referring to her underwear. Again she did as she was told. He told her to sit back on him. She did. She was very scared.

Count 4

17. While sitting on him, he asked her to have sex. She said “No, I don’t. I don’t want to get pregnant.” He said, “Don’t worry, I’ll pull out five minutes before I blow.” She said, “No. I don’t want to risk it.” Haralabidis put his arms around her waist and moved her forward so she was directly sitting on him. She was straddled over him. His penis, which was exposed, he put partially into her vagina for about a minute. She was not consenting. She moved, trying to move back. He was holding her waist preventing this. She persisted and was able to move away a short distance while still sitting upon him.

18. At this point she turned and saw a person some ten metres or so away on her left. “Who’s the person?” she asked. The person moved away. She turned and next saw Petropoulos, who I hasten to add was not the person she had first seen, standing about ten metres away. She said to Haralabidis, “What’s he doing there?” Haralabidis did not respond. Petropoulos walked up to them. She was still straddled over Haralabidis’ thighs. One of the men said, “Do you want to have some fun?” She said “What do you mean?” The reply was “Having threesome.” Her response was “No, I am not comfortable with a three way.” There was no response from either accused.

19. Petropoulos, although not invited so to do, sat down. He leaned over, kissed the complainant for a couple of seconds. It was an unwelcome act. She moved away. She was still sitting on Haralabidis and still naked below the waist.

20. She attempted to cover herself by pulling her top down. Petropoulos told her not to be embarrassed. He said, “If you’re uncomfortable, I can leave.” She replied, “Yes, I’m uncomfortable.” He said, “So I should leave.” Haralabidis interrupted, “No, stay.” The complainant felt intimidated by the presence of the two men. Petropoulos said, “Okay, how we going to do this?” He placed his hooded jacket on the ground and said, “This is for you so you don’t get dirty. You go down on him,” pointing to Haralabidis, “and I’ll do you from behind.” She said “What? Out here?” Petropoulos said, “Okay fine, we'll go in the car.”

21. They returned to the car, she reluctantly, not wanting or looking forward to any proposed sexual encounter. She was still naked from the waist down, scared of what the offenders might do to her. Petropoulos opened the car door, pushed down the seats. She said, “I do not want to have sex.” The accused entered the car. One of them had nudged her to go into the car. Petropoulos sat in the middle of the rear seat. She was sitting on her knees on the reclined seat. Haralabidis was between the passenger seat and the dashboard. He closed the door. She said for a second time to the accused, “I do not want to have sex.” Neither said anything.

22. She was in a quandary. A number of thoughts ran through her mind; a number of thoughts of escaping also ran through her mind. Ultimately she did not think that would be a good idea.

Count 5: Sexual Assault in company; digital penetration by Haralabidis, Count 6: Sexual Assault in Company, Oral Sex on Petropoulos; and Count 7: Sexual Assault in Company, Anal Intercourse by Haralabidis

23. Petropoulos took off his pants and told her to go down on him. She performed oral sex on Petropoulos and as she did so, Haralabidis was separating her buttock cheeks with his hand. He placed a finger into her vagina. While doing this he also placed his penis into her anus.

24. Meanwhile Petropoulos, whose penis was not yet erect, said to her “come on, get it up”. The complainant gave him oral intercourse and his penis became erect.

25. The anal intercourse by Haralabidis was for a short time. It hurt the complainant. Haralabidis’ action in placing his penis (as said, read "finger") into the vagina also hurt. Haralabidis commented about the complainant being “too small”. The two offenders agreed to swap positions.

26. During the incident the complainant told the offenders she had to go home soon. Haralabidis asked what time she had to be home. She said she had to be home at 9.30. One of the offenders said, “Okay, we’ll be quick.” Whether it was the same offender or not is unclear, but one said, “If you’re not home by that time will your Dad call you.” She said, “Yes.”

26. The two offenders swapped positions. Petropoulos now in the front seat area behind her asked had she ever had anal sex. She said, “No”. He said “Would you like to try it?” Her reply was, “Not really.”

Count 8: Sexual Assault in Company, Oral Intercourse on Haralabidis; Count 9: Sexual Assault in Company, Fingers into Vagina by Petropoulos; Count 10: Sexual Assault in Company, Anal Intercourse by Petropoulos

27. Haralabidis told her to go down on him. She said “I don’t want to. You've just put that in my butt.” Haralabidis replied, “It doesn’t matter. Do it.” She started to perform oral sex upon him. As she did, Petropoulos separated her buttock cheeks with his hands, put a finger or fingers into her vagina and about the same time inserted his penis into her anus.

28. The intrusion of an adult penis into her anus caused great pain. It felt to her as if her skin was about to rip.

Count 11: Anal Intercourse by Petropoulos

29. Petropoulos said it would be better for him if she sat on him. She stopped giving oral sex to Haralabidis. Petropoulos moved to a seated position, withdrawing his penis as he did so. He was still on the front passenger seat. He placed his hands now upon her waist and brought her closer to him until his penis was again inserted into her anus. The degree of penetration was less deep than previously, but still caused discomfort.

Count 12: Anal Intercourse by Petropoulos

30. Petropoulos withdrew his penis and moved back to a standing type position. At this time Haralabidis said, “Just fuck her. It’s easier.” She turned around and said “No.” Petropoulos again placed his penis in her anus, again causing discomfort.

Count 13: Oral Intercourse on Haralabidis

31. Once Petropoulos had resumed the standing position, as it were, and the complainant was facing Haralabidis, he told her to continue giving him oral sex. She gave him oral sex for a few seconds and stopped. He said, “Keep going.” He held the back of her head and brought it forward toward his penis. She continued to give him oral intercourse. At one point he said, “Lick my balls.” She did so.

32. Petropoulos then asked if he could ejaculate on her back. She stopped giving Haralabidis oral intercourse and asked why. Petropoulos said it sets him off. He proceeded to ejaculate on her lower back. When that was completed he exited the vehicle. She wiped her back, as I understand it on his T-shirt.

33. Haralabidis wanted to continue oral intercourse. He said he was about to come. He ejaculated into her mouth. She opened the door of the vehicle and spat his ejaculate on the ground.

34. Petropoulos began to laugh, saying “I’m sorry, that’s just the funniest thing I’ve ever seen”. He then handed her a t-shirt saying she could wipe herself. She used that t-shirt to wipe herself. She reclothed herself with her underwear and shorts.

35. Haralabidis exited the car. The two males had a cigarette. She returned to the car. During the criminal conduct in the car, Haralabidis switched the inside light on a couple of times. Each time the complainant asked for it to be switched off. Petropoulos also switched the light on. Again she asked for it to be switched off. He asked why. She replied, “I don’t want you looking at me.” Haralabidis joined the conversation “Why? It’s a good arse.” The light was turned on during the period each offender had his penis in her anus. Unknown to the complainant, Petropoulos used his mobile phone to film his penetration of her from two different positions, including when he was in the seated position.

36. During her time in the car there was some touching of her breasts, but not for any extended period.

37. After the offences were then committed, she was taken at her request to Ashfield Railway Station; a five or ten minute drive from Beaman Park. She telephoned her mother about 9.10, who arrived shortly after and returned the complainant to her home.

38. There was a subsequent contact by Haralabidis to her while she was on the MSN Website. That contact occurred sometime during the day following. He messaged her saying, “Oi, why are you being a snob for?” She replied, “I’m not.” His message, “Do you want me to talk to you?” Her message, “No I don't. I don’t want to talk to you.” His message, “Can I ask why?” Her message, “Because of last night. You knew I didn’t want to do anything.” His message, “Okay, sorry.” Her message, “I’m thinking of going to the police.” His message, “I’m warning you, don’t do anything stupid.” Her message, “Or else what?” His message, “Are you being serious?” Her message, “Yes.” His message, “I’m warning you, don’t do anything. I wouldn’t do anything stupid.”

39. Both accused were arrested on 10 April 2008. Initially Haralabidis was not given bail or not able to make it and spent five days in custody. During his arrest Haralabidis was interviewed by police over a number of hours. He denied the offences initially and ultimately admitted to consensual touching and oral intercourse in the car. He denied anal, penile or finger penetration occurred.

Objective Criminality

40. From the facts as he finds them to be, a sentencing judge is required to assess what is called the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of an offender. That is a fairly technical exercise by the judge, and you can be sure that those who are looking after your interests will check to see that the assessment is properly done. What is sought to be done is to compare objectively the criminality exhibited in the charges before me with criminality of offences of a similar kind. It is in this way that was is called the objective seriousness of the criminality in these matters can be assessed or evaluated. That important criminality has an important, indeed the main impact upon the over all sentencing outcome.

41. A useful starting point in the assessment of objective criminality in sexual assault cases is to remind the court of part of a judgment of one of the great judges of appeal in New South Wales, Mahoney J.A. He said in this particular judgment,

“As I have indicated, every offence of this kind is a serious offence, but those whose duty it is to deal with crimes of this kind, and to sentence those who commit them, know that though each case is inherently serious, some are more serious than others. In some cases the degree of violence, physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation and otherwise are much greater than are involved [in other cases], It is to be understood that in sentencing, it is appropriate, indeed, in most cases it is necessary that the sentencing judge form and record his assessment of where on the relevant scale of seriousness the particular offence lies.” R v Gebrail unreported NSWCCA 18/Nov (1994).

42. The then chief justice of New South Wales made the point that non-consensual intercourse is an extreme form of violence, and one which the community expects courts to take very seriously, see R v Hartikainen unreported NSWCCA 8 June 1993, even if no additional violence is administered other than the intercourse, see R v Pay (1999) NSWCCA 40 [7]. Unwanted forced intrusion into the privacy, indeed the intimacy, of a complainant’s body and psyche, against her will by use of physical power and callous disregard of her wishes or feelings, marks the essence of the criminality of these offences.

43. In this case the complainant was subjected to humiliating, demeaning and violent indignities by both men. Clearly, the sexual offending by each in the car lifts this case above the level of sexual assault cases falling towards a lower level of criminality. That each offender was in the company of the other is a circumstance of aggravation that has been made an element of the offence. But in this case, the other person in company was not only a spectator, but was himself generally a participant simultaneously. Both men were concerned primarily with their own sexual gratification, taken from some sexual bonding they were able to achieve through their mutual acts of intercourse with, and presumably humiliation of, a young woman.

44. For many of those who do not practise anal intercourse - and I am satisfied the complainant did not - there is a stigma about it. That stigma is most common among the young. That she was penetrated initially by Haralabidis in the presence of another male whom she did not know must have been crushing for her; that she was required to suck the penis that moments before had been in her anus must have been revolting beyond her worst nightmare.

45. Being penetrated in two and sometimes three places in her body simultaneously was degrading of her and her womanhood. The conduct engaged in by the offenders, robbed sexual activity of any link it might have to romance, love or sharing of friendship experience with another. This was an exercise in self and male focus for these two young men. Being shuttled back and forth so that each could mutually satisfy himself by penetrating her at one while the mate penetrated her at the other, all the time unwilling, and the absence of her consent being ignored.

46. While I am suspicious that both men were up to a threesome that night before they met the complainant, I cannot be satisfied beyond reasonable doubt that that was so. Even if it were so, it would be impossible to go the next step and say they were going to have a three-way, whether the unknown girl consented or not. The Crown does not allege planning. I am prepared to find these offences must be considered as unplanned and opportunistic.

47. There is no suggestion either accused was in any way affected by drugs or alcohol. It would seem that at the time of meeting the complainant, both men were leaving open their prospects of later going elsewhere. It would seem they did not do that, as events turned out.

48. In assessing whether these offences in the motor vehicle fall within the mid range, I have determined only where the offender was the principal in the first degree that that offence is a candidate offence, one that might reach a mid range of seriousness.

49. The law has long distinguished, when measuring criminality, the criminality associated with the actual doer of an offence as usually being greater than the criminality of his accomplice. It is less frequently that the offender and accomplice are regarded as sharing equal criminality in an offence. I do not regard, for example, the last offence committed in the vehicle, that is, the fellatio upon Haralabidis as reaching a mid range of seriousness. While the jury, by its verdict, regarded Petropoulos as still being in company with and sharing a common purpose, Petropoulos’ participation on this occasion was outside the vehicle for most of that time.

50. Haralabadis’s offence is not aggravated by the other offender penetrating the complainant simultaneously. Likewise I do not regard Petropoulos’ anal penetration of the complainant when in the sitting position as constituting a mid range offence for the same reason, that is, the complainant was not being penetrated simultaneously by the other offender.

51. There is a second reason for declining to regard the subsequent - that is the sitting - incident of anal intercourse as falling below the mid range. True, the penis was asserted afresh from the anal intercourse that had been going on seconds before and therefore the elements of a second offence can be proved beyond reasonable doubt, but in the circumstances of the case it was effectively a continuation of the anal intercourse charges against Petropoulos that immediately preceded it. Likewise, when he resumed the position he had initially had, that was in effect a continuation of the anal intercourse that had started by him and been interrupted by the turn around.

52. When this anal intercourse by Petropoulos initially began, Haralabidis was also penetrating another part of the complainant’s body. In the course of that anal intercourse, penetrating was deep and painful for the complainant. At that time there was a third penetration by Petropoulos. The two men, in penetrating together a girl they did not know, were seeking a bond through their mutual unlawful sexual activity, callous of the complainant’s position or feeling. It should be made clear, particularly because I sense Mr Longville, counsel for Petropoulos, submits otherwise, the criminality of earlier or subsequent offending does not impact upon the seriousness of the criminality of the offence standing for consideration, other than in respect of past offending being part of the circumstances and background in which that offence occurs. Perhaps the only exception to that is when concurrent sentences are set and the doctrine of totality requires some upward adjustment.

53. When determining whether an offence attracts a standard non-parole period, that decision must be formed upon an assessment of the objective criminality of the considered offence standing alone. It is also argued the complainant showed no signs of distress, by which is meant that she did not cry, scream out or cringe in fear. I accept that is so. Her evidence is she submitted, believing that to be the safest course. It must have been obvious to each of these uncaring men that they were penetrating someone who was doing no more than submitting, complying and accommodating. When she did speak it was to express a negative.

54. It was argued that the complainant’s evidence was that at some time she pretended she wanted to [have sexual intercourse]. No-one questioned her about what she meant by those words or what steps she took to pretend. The importance of the evidence was that it went to a third element the Crown needed to prove beyond reasonable doubt, namely, whether the accused knew she was not consenting. The jury, by its verdict, clearly did not give the evidence any weight the defence hoped for on account of that element. My own sense of meaning is that she pretended to be submitting by not crying out, by not screaming. I am satisfied her pretence did not rise above submission, did not give any indication, that her earlier expressed rejections were now withdrawn.

55. A measure of criminality is the impact the offending conduct had upon the victim. In respect of any specific act of intercourse, I can only assess that by saying that that relevant act contributed significantly to the over all impact, but I cannot obviously quantify what impact count 8 for instance had upon her suffering.

56. The complainant suffered physical pain, particularly as a consequence of the anal intercourse. Whatever physical pain was experienced, it would seem to have resolved itself with time. The real sequelae of her sexual assaults is to be found in the real, enduring and serious psychological injury done to her psyche. She experiences ongoing flashbacks and replays, nightmares, depression to the point of attempting suicide several times, insomnia, feelings of guilt and self-loathing. She has also experienced weight loss, no doubt due to the psychological factors, from forty-seven kilos down to as low as thirty-eight kilos. In more recent times she has reached forty-one kilos. She experiences anxiety and what she terms paranoia.

57. The absence of consent was made plain. When the subject of the threesome was first broached at the graffiti wall, she said “No, I am not comfortable with a three-way.” On return to the car she said, “I do not want to have sex.” She was nudged to enter the car, with its seats down prepared for sex. Once sitting in the closed car before anything started she said, “I do not want to have sex.” Neither accused responded; nor did either take any notice of her third expression of a lack of consent. During the course of events, when asked by Petropoulos if she would like to try anal sex, she said, “Not really.” When told by Haralabidis to go down on his soiled penis, she said, “I don’t want to. You’ve put that in my butt.” His reply was, “It doesn’t matter, just do it.” I regard each accused of having actual knowledge of absence of consent.

58. Neither accused wore a condom, the intercourse was unprotected. Victims of unwelcome, unprotected sex are invariably, rightly anxious as to the likelihood of their contacting a sexually transmitted disease. Some of those diseases are still incurable, debilitating, and in some instances can be fatal. The failure to wear a condom aggravates the criminality of the anal intercourse offences in particular.

59. With one exception I do not regard the fellatio charges - that is, the oral sex charges - as falling into the mid range. Whilst I accept they were done at a time when the complainant was being penetrated, the level of pain as distinct from degradation was not as great as occurred through the anal intercourse. The exception, however, was the instance when Haralabidis required the complainant to fellate his soiled penis.

60. I regard the taking of the photographs by Petropoulos as aggravating his criminality. The photo was for his trophy cabinet; he could enjoy and sexually titillate himself with that photograph or those motions after the event. It was not enough that he demeaned her in the car; he sought to use that occasion to enjoy his demeaning of her at his leisure.

61. I do not regard the digital penetration offences of the complainant as reaching a mid range of objecting seriousness. Those offences occurred simultaneously with anal penetration. My sense of the evidence is the digital penetration did not last for long. The complainant’s evidence was that penetration hurt her, but it was not at a level as she experienced when anally penetrated.

62. It is agreed the offender’s acts were not accompanied by aggravation, swearing or “demands often seen in cases of this nature”. That is so, but had that been the case, given what I have documented thus far, the case would then have reached a point above the mid range of seriousness, or at least have been considered for that.

63. Another argument advanced by the defence related to the co-operation shown by the offenders in responding to the complainant’s request for the cabin light to be turned off, each time they turned it on. A moment’s thought about the cabin light being turned on will reveal the cabin light hardly works as mitigation for the offenders’ conduct. The first time the complainant complained about the light, it was clear she was distressed by its being put on. To turn it on a second and subsequent times must have been done in the full knowledge of the distress the light had for her. Further, the purpose for the light being turned on was not so that the offenders could find something, but rather so that they could see more clearly aspects of their own conduct, and in the case of Petropoulos, catch that conduct on his mobile phone camera as a living memory of his unlawful conduct.

64. I regard count 7 as reaching a mid range of seriousness as against Haralabidis. I regard count 8 as reaching a mid range of seriousness as against Haralabidis. I regard count 9 as reaching a mid range of seriousness as against Petropoulos. Each of these offences that I have just nominated is now capable of attracting a standard non-parole period of ten years.

65. I return now to consider whether the objective seriousness of count 4 falls within a mid range of seriousness. That offence occurred with the complainant sitting on Haralabidis’ thighs. He asked her to have sex. She said, “No, I don’t want to get pregnant.” He said, “Don’t worry, I’ll pull out five minutes before I blow.” She persisted, “No, I don’t want to risk it.”

66. It is argued by both defence counsel that the jury probably took the view the complainant had been consenting to the earlier encounters. I make it clear I am satisfied beyond reasonable doubt she never did. I am equally satisfied the jury did not regard her as so consenting. The jury was astute enough to realise, though, that the first time she communicated unequivocally her absence of consent was at the point of count 4. What follows from that is that, in respect of the first three counts the jury could not be satisfied beyond reasonable doubt, Haralabidis knew she was not consenting.

67. That is not the case with count 4, nor is it a case of recklessness, as Mr Hazelwood submitted. It is a case of what part of the word “no” did Haralabidis not understand. His reaction immediate upon her second rejection was to place his hands around her waist and pull her towards his penis. He was not prepared to accept that “No” meant no to him. In the face of her rejection, he went ahead.

68. This intercourse was a case of his penis partially penetrating her. Clearly, full penetration and prolonged penetration would have been of greater criminality. The act seems to have been interrupted by the presence of an unknown observer and closely followed by the presence of Petropoulos. There was no ejaculation. This offence is towards the lower levels of criminality for offences of this kind. It falls below half way towards the mid range of seriousness. It will not attract the standard non-parole period of seven years.

Subjective Matters

69. I turn now to the subjective factors. I am both entitled and required to do that. Not only am I sentencing for the criminal offence, but also I am sentencing each offender for them. Each offender coming before the court varies from others who have stood for sentence. Circumstances personal to the offender may offer to the courts some explanation, or insight into the commission of an offence by him, or some reason why a more or less sentencing outcome is appropriate. I start with Lazaros Haralabidis.

Lazaros Haralabidis

70. Haralabidis is an Australian born of Greek parents. He is twenty-two years of age at the time of sentence and twenty at the time of offending. He comes from strong family support. One of his parents was present each day throughout the trial. His mother gave evidence on sentence; his sister gave evidence in the trial. The parents are hard working. The father currently runs a takeaway food shop in Western Sydney. They instilled into Haralabidis a strong work ethic.

Education, Employment and Skills

71. Haralabidis was a below average student, his mother said. Together with his parents it was decided that he would leave school after year 10. He held a job at Coles for a few months, then took on an apprenticeship as a painter and decorator. He has not yet completed that apprenticeship, but has worked continuously in the trade until the present. Probation and Parole said it received good reports from his current employer for both work performance and work commitment.

72. Probation and Parole report him as being portrayed as an average young man who enjoys sport and is active in playing football and tennis. He has computer skills, at least to the point of being able to spend a couple of hours each evening on the computer.

General Health

73. From his physical appearance in court he presents as a fit healthy young man. It does not appear his general health will cause him any issues in rehabilitation nor is there any evidence of alcohol or drug issues.

Mental Health Issues

74. There are no mental health issues that would cause problems so far as is known to his rehabilitation.

75. Since being charged he is depressed, cranky and locks himself in his room on his own. His condition, if I can call it that, deteriorated during the trial.

Character and Criminal Antecedents

76. He told Probation and Parole he had not previously met or arranged to meet anyone other than the complainant on the basis of any Internet chat. I have already made reference to his absence of any past criminal history.

77. His family is religious. His mother says Haralabidis was taught Christian values. She regarded him as immature, naïve, but a good boy with a good heart. I am prepared, as will be seen later, to accept that description.

Attitude to Offence

78. There is no dispute from the accused that the individual sexual acts that were put before the jury occurred. His contention is that they were consensual. He gave to police an extensive interview, initially denying but subsequently admitting to the sexual encounters. He has much invested in the position he has taken. I do not regard him as having any insight into the gravity of his offending conduct and I do not regard him as having any empathy with the victim.

Timotheos Petropoulos

79. I come to Timotheos Petropoulos. He is the younger of the two by some four months. He has just turned twenty-two. He was born in Greece, the youngest of three siblings. His two older siblings are women aged 29 and 27. He comes from a close knit, law abiding family. One sister told Probation and Parole he had been brought up to be respectful of the opposite sex.

Education and Employment

80. Petropoulos attended Clemton Park Primary and Kingsgrove North Secondary. I think it was the fact that Haralabidis also attended Kingsgrove North, although I did not put that in my remarks. He completed his Higher School Certificate in 2005. He commenced post High School (2006) Certificate 3 in Information Technology with TAFE. The certificate is yet to be completed but a sizeable portion of it appears to have been done. His present employment is as a sales team leader; a field he has worked in since leaving school. His current wage is $1,000 net. He also has an interest in wedding video production and photography. He claims on the job training. He was intending to start his own business this year. He presents as the more urbane of the two offenders. He has a strong work ethic and would appear to have leadership qualities.

General Health

81. So far as one can tell from observation in court he appears fit and in good general health. There appear to be no issues with his general health so far as far as rehabilitation is concerned.

Mental Health

82. Again there is no evidence of any mental health issues or pathology that could impede his rehabilitation.

Alcohol and Drugs

83. Again there is nothing before the court raising alcohol or drug issues that would impede his rehabilitation.

Attitude to the Offence

84. Petropoulos continues to maintain his sexual acts were consensual. He has expressed no empathy to the victim or regrets for his conduct. As with his co-offender he has much invested in his claim of innocence. One can only conclude his priorities are such as to display poor insight into his offending behaviour and its impact upon his victim. I will come in a moment to what I mean by his priorities.

Character and Criminal Record

85. Petropoulos comes from a strong and healthy family background, shows good work ethic and leadership qualities. As noted earlier he too has no criminal convictions.

Rehabilitation Prospects of the Offenders

86. Both young men have clouded rehabilitation prospects. On the positive side both have no prior criminal history or any apparent earlier brushes with the law. Both have good work skills and work ethic, good general health, no issues with drug and alcohol, no mental health issues. Both have good family support, both have upbringings that have focussed upon proper conduct.

87. On the other hand for each there is what I have called present priorities which are such that neither is able to acknowledge their conduct or his conduct was wrong. By the phrase “priorities are such” I refer to their commitment to their families and a realisation that any admission of improper conduct may reflect not only on them personally but on their families. I also include each one’s sense of loyalty to the other. No doubt each also has a fear of what an admission of improper conduct would mean to his own self image.

88. Important as each and every one of those priorities is, while they are more important to them, that is to each of the accused, more important than acknowledging guilt, the court must view each as lacking insight into his offending conduct and any compassion for the impact his offending conduct had upon the victim. Such a lack of insight into conduct of such high criminal order, suggests rehabilitation may not develop with the speed one would otherwise have anticipated given the other factors.

Deterrence

89. These offences are offences committed by young men in their capacity as adults, as such they are offences that call for condign punishment. Such punishment is for the purpose of deterring other would be offenders. There is also an element of personal deterrence encapsulated in any term of imprisonment. I am well aware how seriously each offender and his family regard a prison sentence and how painful such an outcome must be for each offender and the members of the family. That was so eloquently demonstrated by Haralabidis’ mother’s evidence. I acknowledge much that Mrs Haralabidis said about the harm prison does to young men. It is a sentence of last resort. When the offending is such that condign punishment is called for, that is the only time one turns to imprisonment. Regrettably the offending conduct before me calls for such imprisonment. The maximum penalty for each of the aggravated sexual assault offences is 20 years with a standard non-parole period of 10 years. The maximum penalty for count 4 against Haralabidis is 14 years with a standard non-parole period of 7.

Should a Standard Non-Parole Period Be Set For Offences That Fall within The Mid Range

90. Section 54B of the Crimes (Sentencing Procedure) Act1999 (The Act) requires the court to set a standard non-parole period for offences falling within a mid range of objective seriousness unless the court determines there are reasons for setting a longer or shorter period than the standard non-parole period. Way’s case (R v Way (2004) 60 NSWLR 168) determines that that is particularly so after a trial of the issues. In considering the reasons for setting a longer or shorter parole period, the court is confined to the reasons specified in s 21A of the Act. If there be any such reasons the court is required to identify in the remarks on sentence each factor it has taken into account. There appears to be four pathways provided by s 21A to reach reasons for setting a longer or shorter parole period.

• The check list of aggravating factors found in s 21A(2)
• The check list of mitigating factors found in s 21A(3)
• Any other objective or subjective factor that effects the relative seriousness of the offence
• Any other matters that are required or permitted to be taken into account by the court under any Act or Rule of law

Section 21A(2)(e)(a) makes the commission of an offence in the presence of a child under eighteen as a matter of aggravation. It is of course agreed the complainant was under eighteen. I have already taken into account her age when reviewing the objective criminality. Assuming for the moment “in the presence of” applies also to the victim - a proposition that seems a little dubious - I would not regard it as a circumstance of aggravation in this case under s 21A(2) because I have taken it into account when considering the first element of the offence and not surprisingly have taken it into account adversely to both accused.

91. I am satisfied there are no factors established in the evidence calling for a longer parole period than the standard non-parole period.

Mitigating Matters

92. I have found the offence was not part of a planned criminal activity. I have found each offender has no criminal record. I have found each offender is a person of good character.

93. I am prepared to find that neither offender was fully aware of the consequence of his actions because of his age. I have earlier referred to the ongoing deep rooted and serious psychological impact the night of 5 April had upon DB. As this offending conduct was proceeding on 5 April I am satisfied neither offender foresaw the lasting deep seated psychological sequelae. It should not be thought that I am saying Ms DB’s response was extraordinary. Sadly responses such as hers from the trauma of sustained sexual assault is all too frequent. Although the evidence is scant to make the finding enough has been revealed of their age, background, education level for me to use my life experiences, understanding of the late development of the males’ brains, capacity to make judgment calls and to take account of the evidence of Mrs Haralabidis to satisfy myself on the balance of probabilities neither was fully aware of the consequences of his act.

94. All of the above matters I have just referred to fall under the provisions of s 21A(3). Each is a matter which may provide reasons for setting a shorter than standard non-parole period.

95. There is also one further matter that I am required to take into account under a well established principle of sentencing. In Hearne (2007) 124 A. Crim. R. 457 the Court of Criminal Appeal accepted a submission that the youth factor was not to be diminished merely because of the seriousness of a crime on the basis that consideration of general deterrence is not as important as it is when sentencing adults and considerations of rehabilitation should be regarded as very important. Now that may be a little generous then what the court said. I think it really confined itself to saying that the youth factor was not to be diminished merely because of the seriousness of the crime.

In reviewing a number of cases the court observed:

“Courts have taken the view that the younger the offender, the greater the weight to be afforded to the element of youth.”

In Hearne’s case it made a finding that:

“Although an adult may have reacted as he did (Hearne was a “young person”) and the reaction was one of violence, it is not possible to postulate that his reason was not influenced by the immaturity of youth.”

The rule of law requires recognition of youth. The finding made by the Court of Criminal Appeal in Hearne’s case is equally apposite in this case. Both these offenders are young adults but their level of maturity and related brain functioning are still in early states of development by comparison with more mature males. The practice is that accommodation of youth when sentencing for serious criminal offending that really reflects otherwise adult behaviour such as this case is done particularly through the non-parole period and usually by a finding of special circumstances. The requirement to set a standard non-parole period seriously inhibits the operation of this important principle. I am satisfied a parole period less than the standard non-parole period is called for in each of the mid range offences.

Special Circumstances

96. In respect of both offenders I find special circumstances. For reasons I have just given my principal reason for finding special circumstances is the youth of each offender. Full-time custody is non productive of rehabilitation opportunities and motivation. I do not mean to demean them, but such courses as are offered in custody are not completed in a proper learning environment; not consistent in quality teaching content or supervision of pupils. Full-time custody is an artificial environment, rehabilitation is better achieved within a community based setting.

A Question Of Current Or Cumulative Sentencing

97. So far as Haralabidis is concerned there are two sites where his criminality is conducted. There will be an accumulation of sentences between count 4 and the remaining counts. So far as both offenders are concerned the offending in the car while made up of a number of offences is really a continuous stream of offending conduct. I will impose concurrent sentences for all of those offences that occurred in the car.

Setting The Sentences

98. While I have determined that the standard non-parole period will not apply to any of the offences I am dealing with, I must recognise that I am still required to bear it and its purposes in mind when I come to sentence. That will require some upward drive of the actual sentences imposed.

Parity

99. For the offending in the car I have sought to treat each offender the same as the other. I regard their criminality as equivalent, their subjective features also bear striking similarity.

Sentencing Orders

100. Haralabidis, I convict you that on 5 April at Earlwood in the state of New South Wales you had sexual intercourse with the complainant without her consent, knowing she was not consenting. For that offence you are sentenced to a minimum term of 18 months with a balance of term of 6 months (this amended sentencing order was made on the 26th February 2010). That will be to commence on 24 January 2010, that is five days ago to give you credit for the five days you otherwise had.

101. I also convict you of all other offences that are in these terms:- That on 5 April at Earlwood in the state of New South Wales you had sexual intercourse with the complainant without her consent, knowing she was not consenting in circumstances of aggravation, namely that you and Petropoulos were in each other’s company.

102. In respect of count 5 which was described as digital penetration by you I sentence you to a non parole period of two and a half years to date from 24 July 2010, that is a six month accumulation and a balance of term of two years.

103. In respect of count 6, oral sex on Petropoulos and you were in company, I sentence you to a non parole period of two years to commence on the same date and an additional term of two years.

104. In respect of the anal intercourse by you, I sentence to a sentence of three years imprisonment to commence on 24 July 2010, that is the non parole period and a further three years additional term.

105. In respect of oral intercourse upon you in a situation where your penis was soiled, you are likewise sentenced to a term of three years non parole and an additional term of three years, again to commence on 24 July 2010.

106. In respect of count 9 which is the digital penetration by Petropoulos you are sentenced to a term of two years non parole with a two year additional term. In respect of the anal intercourse offence by Petropoulos which is count 10, you are sentenced to a term of two years with a balance of term of two years. So, that is two years non parole with a balance of term of two years.

107. In respect of the anal intercourse by Petropoulos when the complainant was sitting on his lap, you are sentenced to a term of imprisonment of two years with a balance of term of two years. With the resumed anal intercourse by Petropoulos, again the sentence is two years in custody non parole with a balance of term of two years.

108. For the oral intercourse on you which was the last offence that occurred, you are sentenced to a term of imprisonment of two and a half years -imprisonment - non parole period with a balance of term of two years.

109. Your overall sentence will be one of six and a half years with an overall non parole period of three and a half years.

HEAZLEWOOD: Can I just interrupt your Honour, you didn’t make a commencement date for those last few sentences but I assume they were all to commence in July.

HIS HONOUR: I will make it clear they will all commence on 24 July 2010.

HEAZLEWOOD: I just wanted to clarify that.

HIS HONOUR:

110. Mr Petropoulos you are convicted of all offences that were in these terms, there are nine of them:- That you on 5 April 2008 at Earlwood did have sexual intercourse with the complainant without the consent of the complainant knowing she was not consenting in circumstances of aggravation, namely that Haralabidis was with you in your company and you were in the company of each other.

111. In respect of count 5 which is the digital penetration, all of your sentences will date from 29 January so I will not repeat those dates, all from the 29th. You were in company with Haralabidis when he digitally penetrated the complainant. You are sentenced to a non parole period of two years and a balance of term of two years.

112. For the oral sex upon you, you are sentenced to a term of imprisonment of two and a half years with a balance of term of two years.

113. With the anal intercourse offence by Haralabidis count 7, you are sentenced to a term of two years non parole with a balance of term of two years.

114. For the oral intercourse upon Haralabidis in circumstances where his penis was soiled, you are sentenced to two years non parole and a balance of term of two years.

115. For the digital penetration by you of the complainant, you are sentenced to two and a half years with a balance of term of two years.

116. With the anal intercourse by you, you are sentenced to a term of imprisonment non parole period of three years with a balance of term of three years.

117. With the anal intercourse by you when the complainant is put on your lap, that sentence is two and a half years non parole and a balance of term of two years.

118. With the anal intercourse resumed when she went back to the initial position, that also is a two and a half year term of non parole with an additional term of two years.

119. With the oral intercourse on Haralabidis, that is the last offence when you had left the car but were still in the vicinity supporting him, for that offence you are sentenced to a non parole period of two years and a balance of term of two years.

120. The overall effect of the sentence that I have given you is a six year term of imprisonment with a non parole period of three years from today.

121. Both of you, would you listen carefully to what I now have to say. Normally when a judge sentences someone and gives an overall sentence of three or less years he can order that person’s release to parole. As you will see in your case I cannot make that order. That order can only be made by the Parole Board. You will have to persuade the Parole Board that you can be released without danger to yourself or to any other member of the community. One factor that will be important in the Parole Board’s determining whether they will release you or not will be your rehabilitation progress. One of the indicators of your rehabilitation progress will be your attitude to this offence when 2012 or 2013 comes along and whether you still hold then the same views in respect of the offence as you now hold.

122. I should tell you that if you do not succeed at the first hearing you will remain in prison for another twelve months before you are given another hearing. And if you do not succeed at the second hearing you will remain in prison for another twelve months until you are given another chance. That is a fact I suspect a lot of fellows do not know. You only get one chance a year. Any other matter?

RAILTON: Your Honour in respect to the count 4 for Mr Haralabidis, it is my understanding where it’s an offence with the standard non parole period you are not able to set a fixed term of imprisonment, it has to have a non parole period set.

[Legal discussion - sentence later amended pursuant to s.43 Crimes (Sentencing Procedure) Act

HIS HONOUR: I recommend to the Corrective Services and I’ll put this on the warrant that they be classified. They’ve never been into prison before, they’re both young, both vulnerable, get them out of there as quick as you can. I recommend that they be classified as quickly as possible. Thank you, I’ll adjourn.