R v Mohammed Skaf

[2005] NSWCCA 298

CITATION:	R v Mohammed Skaf [2005] NSWCCA 298
HEARING DATE(S):	26 July 2005
JUDGMENT DATE:	16 September 2005
JUDGMENT OF:	Studdert J; Bell J; Latham J
DECISION:	Leave to appeal against the sentences imposed is granted, and the appeal is allowed. The sentences imposed in respect of counts 1 and 2 are confirmed. The sentence imposed in respect of count 14 is quashed. In lieu thereof, the applicant is sentenced to a term of imprisonment of five years to commence on 1 January 2005 and to expire on 31 December 2009. The sentence imposed in respect of count 15 is quashed. In lieu thereof, the applicant is sentenced to imprisonment for a term of fifteen years, also to commence on 1 January 2005 and to expire on 31 December 2019, with a non parole period to commence on 1 January 2005 and to expire on 2 January 2012. The first date upon which the applicant will be eligible for release upon parole is 2 January 2012.

CATCHWORDS:	Criminal law - application for leave to appeal against sentences - detention of complainant for advantage - aggravated sexual intercourse without consent (in company) - whether errors in findings and approach by sentencing judge - whether sentences manifestly excessive.
LEGISLATION CITED:	Children (Criminal Proceedings) Act, s 6 Crimes Act, s 61J, 90A Crimes (Sentencing Procedure) Act, ss 33, 44, 59
CASES CITED:	Ibbs v The Queen (1987) 163 CLR 447 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Bailey (1998) 35 A Crim R 458 R v Jones (1993) 70 A Crim R 449 R v AEM & Ors [2002] NSWCCA 58 R v B. Skaf & M. Skaf (2004) 60 NSWLR 86 R v Smith (1987) 44 SASR 857 Ryan v The Queen (2001) 206 CLR 267 Veen v The Queen (No. 2) (1987-1988) 164 CLR 465
PARTIES:	Regina v Mohammed Skaf
FILE NUMBER(S):	CCA 2003/3232
COUNSEL:	R. Cogswell SC/D. Arnott (Crown) S. Odgers SC/H. Dhanji (Applicant)
SOLICITORS:	S. Kavanagh (Crown) S.E. O'Connor (Applicant)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0901; 01/11/0591
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ

2003/3232

STUDDERT J
BELL J
LATHAM J

Friday 16 September 2005

REGINA v MOHAMMED SKAF

Judgment

1 THE COURT: The applicant, Mohammed Skaf, seeks leave to appeal against sentences imposed by his Honour Judge Finnane QC following upon the applicant’s conviction for two offences of detain for advantage and two offences of aggravated sexual intercourse without consent (in company).

2 For the first of the offences of detain for advantage, his Honour sentenced the applicant to imprisonment for a term of five years to commence on 3 January 2001 and set a non parole period of three years to expire on 2 January 2004. For the first of the aggravated sexual intercourse offences, the judge imprisoned the applicant for seventeen years, again to commence on 3 January 2001. His Honour set a non parole period of eleven years to expire on 2 January 2012. For the second of the detain for advantage offences, the applicant was sentenced to imprisonment for five years and a non parole period of three years was determined. Finally, on the second of the aggravated sexual intercourse charges, the applicant was sentenced to imprisonment for fifteen years . The judge set a non parole period of three years two days for this offence.

3 In addition to the offences for which the sentences recorded were imposed, the applicant was also sentenced for an offence dealt with at a separate trial, but the conviction and sentence for that offence were subsequently quashed by the Court of Criminal Appeal: see R v B. Skaf & M. Skaf (2004) 60 NSWLR 86. Having quashed the conviction and sentence for that other matter, the court proceeded to vary the sentences referable to the present offences, pursuant to s 59 of the Crimes (Sentencing Procedure) Act. The varied sentences were expressed by the court as follows:

Count 1 (the first of the offences of detain for advantage): a sentence of five years to commence on 3 January 2001 and to expire on 2 January 2006 with a non parole period of three years to commence on 3 January 2001 and to expire on 2 January 2004;

Count 2 (the first of the offences under s 61J of the Crimes Act ): a term of imprisonment of seventeen years to commence on 3 January 2001 and to expire on 2 January 2018 with a non parole period of eleven years to commence on 3 January 2001 and to expire on 2 January 2012;

Count 14 (the second of the offences of detain for advantage): a term of imprisonment of five years to commence on 1 January 2010 and to expire on 31 December 2015 with a non parole period of three years to commence on 1 January 2010 and to expire on 31 December 2012;

Count 15 (the second of the offences under s 61J): a term of imprisonment of fifteen years to be served concurrently with the sentence for count 14 and to commence on 1 January 2010 and to expire on 31 December 2025 with a non parole period of three years two days to commence on 1 January 2010 and to expire on 2 January 2013.

4 When setting those sentences, the court invited correction for clerical mistakes and observed that the rights of the appellants to prosecute their pending applications for leave to appeal in relation to the sentences were unaffected by the orders.

5 The expiry date for the offence the subject of count 14 should have read 31 December 2014 and the fifteen year term for the offence the subject of count 15 should have been expressed to expire on 31 December 2024.

6 However, it is acknowledged by the Crown that there is another error in the re-sentencing exercise that was undertaken. The sentences on count 14 and count 15 should each have been expressed to commence on 1 January 2009, providing for an effective head sentence of twenty-three years with a non parole period of eleven years.

7 The need for the Court of Criminal Appeal to adjust the sentences was to close the gaps in sentences arising in consequence of the order made by the Court of Criminal appeal quashing another sentence. The sentencing judge, when imposing sentences on counts 14 and 15, provided for a commencing date eight years after the sentences imposed on counts 1 and 2 and that difference in commencing dates ought to have been preserved and doubtless was intended to be preserved in the task pursuant to s 59.

8 It is to be noted that when sentencing the applicant for the first of the aggravated sexual intercourse offences, the judge took into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999, the following additional offences:

(i) an offence of common assault;

(ii) an offence of receiving;

(iii) an offence of intimidating police;

(iv) an offence of larceny.

9 The offence of detain for advantage is an offence for which s 90A of the Crimes Act provided for a maximum penalty of fourteen years imprisonment in the event that the person detained was liberated without having sustained any substantial injury. The offence of aggravated sexual intercourse without consent (in company) is an offence for which s 61J of the Crimes Act imposes a maximum penalty of twenty years imprisonment.

10 The offences charged in the indictment were committed on 30 August 2000. Ms C was approached by the applicant as she was travelling on a suburban train, intending to proceed from Belmore to Lidcombe. The applicant was in company with others, including H, Mohamad Sanoussi and Mahmoud Sanoussi. Ms C agreed to travel with the men to Bankstown after the applicant had invited her to join the men to smoke some marijuana. They alighted from the train at Bankstown. Having done so, the group proceeded to the Marion Street carpark. The applicant had earlier taken Ms C’s mobile phone and he lured her into one of the toilets in the toilet block and he detained her there. The applicant told Ms C: “You won’t get your phone back until you fuck me.” Ms C replied: “Fuck the phone, I’m going home”, and tried to leave. However, the applicant prevented Ms C from leaving the toilet and pushed her up against the tiled wall. He turned her around and pulled down her skirt and underwear. He then said to Ms C, “I’m going to fuck you Leb style”. He stood behind her pinning her up against the wall and he then engaged in penile-vaginal intercourse.

11 The facts outlined give rise to the first of the unlawful detention counts and to the first of the aggravated sexual intercourse counts.

12 When the applicant had finished, Ms C was forced to remain in the cubicle and was subjected to sexual assaults by other men.

13 When eventually Ms C left the toilet block, she was persuaded to enter a black car with males in the belief that she would be taken home. In fact the victim was taken to the Bankstown Trotting Club where other sexual offences were committed upon her by other males.

14 There then followed a journey in a red vehicle, which Ms C entered in the belief that she was going to be taken home in that car. This time the victim was taken to an industrial estate at Chullora. Whilst detained in that vehicle, the victim was subjected to further sexual offences. The offences included discrete offences under s 61J committed by the applicant’s brother, Bilal Skaf, by the driver, Chami, and by a third occupant of that red car. In addition, Bilal Skaf and the third offender, acting in concert, committed an aggravated act of indecency and aggravated indecent assault.

15 When Ms C was able to leave the red car, it was driven towards the driveway of the industrial estate and was hosed down. Ms C made an attempt to leave but as she was walking past the red car she was hosed down too. Thereafter, she managed to reach the street but was caught there by one of the males and led back into the estate. The applicant came to her, put his arm around her and led her away from the remaining group of males saying “I have to talk to you”, and she was taken to a place where there was a pile of sacks. Hence the second detain for advantage offence.

16 Once at the pile of sacks, the applicant said to Ms C “Suck my dick again, bitch”, and she did what she was told because she was scared of being hurt. Hence the second count of aggravated sexual intercourse without consent. Whilst the applicant had asked Ms C to engage in the activity “again”, Ms C’s evidence was that there had been no episode of “oral” between them at the earlier encounter.

17 After the oral intercourse had finished, Ms C held on to the applicant’s penis and squeezed it hard, telling him to give her back her phone. He screamed out to the other males and said “Get the gun, get the gun”, and Ms C let go of his penis.

18 Ms C was then set upon and sexually assaulted by other members of the group.

19 Eventually, Ms C was driven to Lidcombe railway station by the driver of the black car and she complained to the police the following day.

20 The above outline discloses the grave criminality of the conduct of this applicant, limited as it was to his actions at the Marion Street toilet block and at the Chullora industrial site.

21 As to the Form 1 offences which the judge took into account in determining the sentence for the first of the s 61J offences, details of these offences were recorded in the remarks on sentence (ROS 21-23), and it is convenient to repeat what the judge there said:

“1. Receiving stolen property of a value less than $5,000 .
The circumstances were that a number of youths surrounded the thirteen year old near Punchbowl High School on 10 April 2000 and robbed her of a shoulder bag containing a mobile phone after they had failed to force her to get into a car with them. A short time later, the offender attended a pawn shop and pawned the stolen mobile phone for $130.
2. Intimidating a police officer on 13 February 2002 .
The circumstances were that whilst on a journey with police from the Kariong Detention Centre to the Gosford Police Station, he commenced speaking about his cousin. The conversation was in the following words:
‘SKAF: “I hear youse have been talking to my cousin.”
DETECTIVE HANNIGAN: “Who, Ali?”
SKAF: “Ibrahim mate. Look, he didn’t know anything about that (D) bitch. I swear, you talk to him again and I’ll blow your brains out.”
DETECTIVE HANNIGAN: “Is that directed at us?”
SKAF: “It’s directed at any copper that goes near him, and if you think that Susan’s gonna give evidence against my brother, you’re wrong.”’”

(The judge proceeded to remark that he was certain that the reference to “Susan” was a reference to Susan Bakry, a cousin who was scheduled to give evidence against Bilal Skaf on a charge of perversion of the course of justice.)

“3. Assault on 7 October 2000 .
The circumstances of this offence were that the offender and Tayyab Sheikh met two young girls at Strathfield Railway Station at about noon. It was a Saturday. The girls had never met them before.
They persuaded the two girls to go with them by car to Bondi Beach. The two girls got into the back of the car. During the trip, the offender said: ‘Seeing as there’s four of us, let’s all have a gang bang’. Later, he told one of the girls who had joked about driving the car; ‘the only thing you’ll be driving is my dick’. She became upset at this and slapped his head, saying: ‘Don’t fucking speak to me like that’. He replied: ‘Don’t fucking hit me’. She said: ‘Don’t talk to me like that. Who do you think you are?’ He replied: ‘I swear, if you touch me one more fucking time, I’ll do something to you’. She replied: ‘What are you going to do little boy?’ Apparently in a rage, the offender jumped into the back seat, forced her up into a corner of the car, lit a cigarette lighter and holding it close to her stomach, said: ‘Don’t think I won’t burn you, because I will.’
During this journey the offender had a number of conversations on a mobile phone. Later in the journey, when the car was near Paddington and had stopped, the two girls jumped out of the car and walked away.
The entire journey was subject to police surveillance and when the girls left the car, police met them, escorted them away and interviewed them. This incident led to his arrest on 07 October 2000.
4 . Larceny on 15 August 2000 .
This involved him sealing car parts in a car.”

22 The judge remarked, after recording the above outline of facts that they showed “his arrogance, contempt for police and contempt for women.” Having regard to the facts concerning the Form 1 offences, the comment of the judge concerning them would seem to be well founded.

23 The applicant in two interviews with police denied knowledge of the events of 30 August 2000 but in a third interview he acknowledged that what he had said earlier was untrue and proceeded to admit to sexual intercourse with Ms C in the toilet block at Marion Street but said that this was consensual. He gave no evidence at the trial.

24 This applicant was born on 7 May 1983, so that he was seventeen years of age when these offences were committed. He is a younger brother of Bilal Skaf, also involved in events of 30 August 2000. He had no relevant criminal record.

25 A report of the Department of Juvenile Justice before the sentencing judge revealed that the applicant’s parents came to Australia from Lebanon and the applicant was born in this country. His father worked for City Rail. The author of the report recorded that the applicant was unwilling to accept responsibility for the offences and frequently protested his innocence.

26 The judge noted that the applicant was literate and of average intelligence and that he had been able to complete a number of courses whilst in detention. He also noted that the applicant had been troublesome and at times violent whilst in detention. He was diagnosed as having an antisocial personality disorder.

27 The applicant expressed no contrition or remorse.

Evidence of Hodgkin’s disease

28 The applicant was sentenced on 10 October 2002. On 13 November 2002 he was diagnosed with Hodgkin’s disease and this Court has received affidavits from Ross Patrick Hudson, the solicitor with the conduct of the matter on behalf of the applicant. The relevant affidavits were sworn on 19 July 2005 and 25 July 2005. To those affidavits have been annexed reports by Dr Susan MacCallum, a consultant haematologist, and by Ms Plahn-Williamson, a clinical psychologist. To a further affidavit of Mr Hudson of 27 May 2005 is annexed a report of Associate Professor Szer.

29 In her report of 23 July 2003 Dr MacCallum recorded the applicant’s diagnosis with Hodgkin’s disease on 13 November 2002, which diagnosis followed “a typical short history of fevers, weight loss and a rapidly enlarging gland in his neck.” The applicant was treated with chemotherapy which Dr MacCallum recorded was “generally well tolerated” and completed in late May 2003. The applicant did, however, experience two significant complications, namely shingles and a thrombosis of his venous access device which required surgical removal, followed by anticoagulant therapy for three months.

30 On 17 December 2004 Dr MacCallum reported that the applicant had had symptoms including difficulty in swallowing solids, episodes of dizziness and occasional night sweats. The doctor remarked upon the need for ongoing surveillance with regular clinic visits, imaging and blood tests. However, the doctor was at that time pleased with the applicant’s progress.

31 It appears from Mr Hudson’s affidavit of 25 July 2005 that Dr MacCallum’s present view as to the applicant’s prognosis is unchanged from that expressed in her report of 23 July 2003. At that time, Dr MacCallum said this:

“Mohammed’s mid treatment staging investigations show a favourable response and I would hope that he will not need any further therapy, although he will need close surveillance over the next two years and continued review over the next five years. I will be seeing him monthly at my clinic for the first three months and re-staging scans will be done at three and six months, although obviously this depends on his clinical state.”

32 Ms Plahn-Williamson initially assessed the applicant in April 2002 before his disease was diagnosed but there was a further assessment in October 2003 after the chemotherapy treatment. The psychologist reported on 20 October 2003:

“During his life threatening and extremely debilitating illness, Mr Skaf had to endure limited reassurance and comfort from his family, which is normally considered necessary for a successful recovery from a serious cancer. Mr Skaf told me that on several occasions he lost his composure and cried. Mr Skaf reported that he was prescribed anti-depressant medication (Luvox 200mg), which appears to be helping him cope with his day to day mental and physical suffering. Mr Skaf told me that his doctors felt that he was probably sterile for the rest of his life. The sperm sample taken prior to commencement of treatment can only be stored for ten years.
Mr Skaf told me that he requires further operations for his sinus problem and a tonsillectomy. However, doctors had told him that these operations would be too risky considering his fragile condition. The dietary restrictions due to his Warfarin medication place further strains on Mr Skaf, as he does not have access to appropriate fresh fruit and vegetables to promote a normal recovery. Mr Skaf said that he mostly feels anorexic but that he tries to keep his hydration levels normal. During the cancer treatments Mr Skaf reported that he had also suffered kidney failure as a complication of his treatment.
Following his discharge from Prince of Wales Hospital, Mr Skaf explained how he has to be kept in the non-association section for protection within the prison system. This type of protective custody further isolates and dehumanizes the experience of day to day life and does not allow for emotional growth or personal development. This isolation alone would delay recovery and being denied closer contact and reassurance from his family places Mr Skaf at risk of deterioration physically and mentally. Mr Skaf told me that he has no access to education programs within the prison system to keep his mind occupied. However, Mr Skaf also reported that following the chemotherapy he experiences lethargy, visual disturbance, as well as difficulty in concentration and attention.

Mr Skaf told me that during the acute phase of his treatment, he had been tempted to end his life, but that the thought of the pain this would cause his parents and his siblings [sic] and this stopped him. Mr Skaf also described how the past and current suffering had made him more compassionate and understanding of other people’s pain and suffering, particularly those trying to combat cancer. Mr Skaf told me that if he was able to survive his cancer, he was keen to explore how he would be able to help other young men diagnosed with Hodgkin’s Disease. Greater access to learning programs within the non-association section of the prison should be explored to allow this young [man] to be given the opportunity to rehabilitate mentally, physically and socially.
Mr Skaf is a depressed and anxious young man who is trying to recover from a life threatening lymphatic cancer. He is highly dependent on medication to ensure his physical and mental survival. He requires increased family contact, access to education, and healthy food to ensure promotion of recovery and prevention of deterioration of his fragile health. Since his serious life threatening illness, Mr Skaf appears to demonstrate greater insight into other people’s suffering and struggles. He expressed the desire to understand and explore the meaning of his life and the possibilities for a future constructive life. Further psychological follow-up assessments are recommended to monitor this young man’s fragile mental and physical health.”

33 Associate Professor Szer, who is the Head of Clinical Haematology at the Royal Melbourne Hospital, has opined in his report of 25 May 2005, that the disease was probably present in the applicant as at the date of sentencing because enlarged lymph nodes were detected in the latter part of September 2002. However, the evidence does not disclose that the condition had been diagnosed before the applicant was sentenced.

34 Professor Szer has reported that:

“Hodgkin lymphoma is one of the best characterised malignancies of the lymphatic system and is one of the forms of malignant disease most readily curable by radiotherapy, chemotherapy or a combination of the two.”

35 The applicant has sworn an affidavit on 26 July 2002 which has recorded the hardship he claims to have experienced in relation to the treatment of his disease by reason of the circumstance of his imprisonment. The hardship of which he complains is expressed in terms that are consistent with the history that he gave to Ms Plahn-Williamson, as noted in her report of 20 October 2003. The applicant has deposed that he is “devastated” by the information that he is now sterile and that he is having medication for depression and that he feels “constantly stressed.”

36 Whilst it is likely that the applicant was suffering from Hodgkin’s disease at the time he was sentenced, there was no evidence about this condition before the sentencing judge because the condition had not been diagnosed. Where it is shown that a disease manifest at the time of a hearing before this Court was in existence but not evident at the time of sentence, it is proper for this Court to heed evidence proving that by reason of the disease and/or the associated treatment, the imprisonment is rendered more burdensome than in the case of a healthy inmate: see R v Smith (1987) 44 SASR 857; R v Bailey (1998) 35 A Crim R 458; and R v Jones (1993) 70 A Crim R 449.

37 In Smith King J stated the relevant principle in these terms:

“Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a greatly adverse effect on the offender's health."

38 In Bailey Lee J, with whom the other members of the court concurred, agreed with the expression of principle by King J in Smith. Bailey was a case in which the offender was known to have AIDS at the time his appeal was heard, but not at the earlier time of sentence. Lee J said this (at 462):

“In my opinion in a case such as the present where it is clear that the disease with which the appellant is now suffering, was in fact, in existence at the time he was sentenced, it is proper for this Court to allow evidence to that effect to be given on the appeal and to reopen the matter of the proper sentence to be imposed. It has, for a long period of time, been the practice in this Court to take into account circumstances which make the incarceration of the prisoner more burdensome upon him than would be the case of the ordinary gaol inmate. Considerations of health are in this category.”

39 His Honour went on to stress in Bailey that the provision of proper medical attention was the responsibility of the prison authorities.

40 This Court considers that it is appropriate to adopt the course that was adopted in Bailey, and to heed and to evaluate the evidence as to the condition from which the applicant is suffering, the nature of the treatment he has had, and is likely to have, and any added burden attendant upon treatment in prison, together with any added burden of enduring the condition in the prison environment. Caution is, however, to be exercised to avoid undue weight being attributed to these matters. Fortunately, it seems the prognosis is favourable and what will be required in the future, according to Dr MacCallum, is some monitoring over the next five years. There does not appear to be any real risk of imprisonment having an adverse effect on the disease.

41 We turn now to consider the various grounds of appeal which have been expressed as follows:

“1. The sentencing judge erred in determining the factual basis for sentence.

2. The sentencing judge erred in failing to sentence the applicant only for the offences with respect to which he was convicted.

3. The sentencing judge erred in taking into account evidence not relevant to the offence with which to which the applicant was convicted.

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

5. The sentences are individually and in their combined effect manifestly excessive.”

Ground 1: The sentencing judge erred in determining the factual basis for sentence.

42 It is submitted on behalf of the applicant that there are a number of factual errors and a significant factual omission in the remarks on sentence.

43 The first matter complained of is that when the judge was outlining the facts referable to the first of the acts of aggravated sexual intercourse committed by the applicant, he failed to mention the evidence that the applicant put on a condom.

44 The evidence of Ms C was to the effect that she was unsure whether the applicant used a condom or not. Ms C was not facing the applicant when the offence was committed, but rather she was facing the wall. Her evidence (T 55) was this:

“After he said that [referring to the expression of intention recorded in para 10 above], he started touching me down there a bit and he, I think, he put on a condom. I can’t be entirely sure. He did take a little while to actually penetrate his penis into me and he then proceeded to have intercourse with me.
Q. Where was he in relation to you when the intercourse happened?
A. He was standing behind. He had me up against the wall face first. He was standing behind me.”

45 This Court does not consider that the failure of the judge to specifically review the above evidence was any indication that the judge proceeded to sentence the applicant on an erroneous factual basis.

46 The other matter to which this ground relates concerns the later of the aggravated sexual intercourse offences committed at Chullora. In referring to this offence in the remarks on sentence, the judge said: “Mohammed Skaf assaulted her vaginally and orally.” Earlier, his Honour had referred to men having hosed Ms C, and in that context proceeded to say:

“It was after this that a man in the black car whom he could not recognise took her behind a shed and had oral sex with her. By this time, although she had been through a terrifying ordeal, she had enough and she grabbed his penis and squeezed it which provoked from the cowardly assailant a call to his companions to bring a gun. She then let go of his penis.”

47 That more detailed reference seems broadly to accord with the circumstances of the second of the s 61J offences committed by the applicant, but his Honour did not specifically relate that more detailed description to the activity of the applicant.

48 The judge was plainly in error in stating that the applicant sexually assaulted Ms C, “vaginally and orally”. What was alleged and established against the applicant was an act of oral intercourse only.

49 The judge also made the following comment (ROS 27-28):

“In this case the sexual assault of Miss C was degrading, unpleasant, violent and disgusting, particularly since it was committed in a toilet block at Marion Street, Bankstown and in a car in a carpark at night.”

50 The reference to the latter location was incorrect. Certainly, there had been offences committed upon Ms C in the car but the act of oral intercourse in which the applicant forcibly engaged Ms C did not take place in a car but at a place where there was a pile of sacks. This factual error does not affect the gravity of the applicant’s offence. However, to proceed to sentence upon the basis that the offence in question involved both oral and vaginal intercourse was a significant error, although his Honour did appreciate that the applicant was to be sentenced for only one act of aggravated sexual intercourse committed at Chullora.

51 It is by no means clear that the sentence imposed upon the applicant for the offence at Chullora attracted a heavier sentence than it would have done had the judge correctly stated that the offence was limited to the activity of oral intercourse. It is to be observed that his Honour took as a starting point when sentencing Mohamed Sanoussi for an act of oral intercourse committed earlier in the Marion Street toilet a head sentence of fifteen years, which he reduced by twenty-five percent discount for a plea of guilty, so to arrive at a sentence of eleven years and three months in Sanoussi’s case.

52 Nevertheless, it does appear from his Honour’s remarks that he proceeded to sentence this applicant on an erroneous factual basis for the later of the offences of aggravated sexual intercourse, and to this extent Ground 1 has been established.

Ground 2: The sentencing judge erred in failing to sentence the applicant only for the offences with respect to which he was convicted.

Ground 3: The sentencing judge erred in taking into account evidence not relevant to the offence with which to which the applicant was convicted.

53 There two grounds were addressed together by counsel and the Court will adopt the like approach.

54 The complaint is made that the judge took into account against the applicant the crimes of others.

55 The trial in relation to the events of 30 August 2000 resulted in other offenders being convicted of offences with which the applicant was not charged and the judge summarised all the offences in his remarks on sentence. The judge did not limit himself to reviewing evidence referable exclusively to the offences for which the applicant was to be sentenced.

56 The submission is made that the judge never stated concerning the applicant’s offences committed on 30 August 2000 that he would sentence the applicant only for the four offences in respect of which he was convicted.

57 Contrary to the submission last noted, the judge did direct himself as to the matters for which the applicant was to be sentenced. At ROS 20 his Honour said, referring to the applicant:

“He was prepared to be at the beginning and in at the end. He was convicted of two counts of sexual intercourse without consent in circumstances of aggravation and two counts of detention for advantage.”

58 And then, at ROS 33-34, his Honour said, after referring to Bilal Skaf’s sentences for what the judge considered to be crimes of the worst type:

“The present offender [referring to the applicant] deserves a greater sentence for the first offence of sexual intercourse without consent in circumstances of aggravation with Miss C than I imposed on the others, apart from Bilal Skaf, because he had a pivotal role in the events of the night and was clearly the leader of the gang that detained and assaulted Miss C. It was his initiative substantially that led to Miss C being detained, raped and then being made available to others in the gang to do likewise. In addition, I take into account in imposing sentence for this matter the facts and circumstances of the matters of the contained in the Form 1 pleas of guilty. I intend to impose a sentence of seventeen years for this offence.
For the other count of sexual intercourse without consent in circumstances of aggravation, I intend to impose a sentence of fifteen years, and five years for each of the offences of detaining for advantage. These were the sentences imposed on the other members of the gang, with the exception of Bilal Skaf.”

59 It was relevant for his Honour to conclude that the applicant played a leading role in luring Ms C into the Marion Street toilets and the description of what occurred at the toilet does put in context the aggravated sexual assault committed by the applicant at that location.

60 The judge expressed an intention in the sentencing remarks to take into account the harm and hurt suffered by Ms C as revealed in her Victim Impact Statement. Complaint is made that he did not express an intention to limit himself to the harm and hurt occasioned by the applicant.

61 The Victim Impact Statement prepared by Ms C was headed “Victim Impact Statement Concerning M. Skaf”. Whilst there is reference to what others did to her, the focus of the statement when read in its entirety is the behaviour of the applicant, and a reading of the statement permitted the judge to restrict his consideration to that which was relevant as against the applicant.

62 The Court does not consider that grounds 2 and 3 have been established.

Ground 4: The sentencing proceedings miscarried as a result of the failure of the sentencing judge to maintain an appropriate level of judicial impartiality.

63 Complaint is made here about certain content of the remarks on sentence:

(a) at their commencement the judge referred to the applicant as “a vicious cowardly bully, arrogant and a liar, as well as being a rapist”;

(b) “These men treated her much like wild animals treat prey they have killed”;

(c) “It is hard to believe that young men brought up in modern Australia could behave so much like wild animals.”

64 It is to be observed that the remarks referred to in (b) above were made in relation to the alleged offence concerning which the conviction and sentence were quashed and not concerning the offences to which the subject sentences relate. Nevertheless, these sentences were imposed following sentencing remarks which included those referred to in (b) above.

65 Senior Counsel for the applicant has properly acknowledged that the public denunciation of the applicant’s offences is a necessary function in the sentencing process. The Court has been referred to Ryan v The Queen (2001) 206 CLR 267 where Kirby J said (at p 302 [118]):

“A fundamental purpose of the criminal law, and of the sentencing of convicted offenders, is to denounce publicly the unlawful conduct of an offender. This objective requires that a sentence should also communicate society’s condemnation of the particular offender’s conduct.”

66 It is to be observed that the remarks referred in (c) above were immediately followed by this statement:

“This sort of conduct cannot be tolerated in a civilised society and those who engage in it must be personally deterred from engaging in such conduct again.”

67 Clearly, this statement by his Honour was entirely appropriate, and what preceded it is to be considered in this context.

68 In Ryan Hayne J adverted to the necessity for a sentencing judge to put aside emotions (see in particular p 306 [134]). So, too, did Kirby J, expressing his agreement with what Hayne J said (see p 302-303 [119]-[120]). The necessity for a judge to approach the sentencing task calmly and dispassionately is of the utmost importance. As Kirby J warned in Ryan (at p 303[120]):

“…unless judicial emotions are kept in check, the danger exists that the judge may impose a manifestly excessive sentence…”

69 Regarded in the context of the remarks on sentence as a whole, this Court is not persuaded that the choice of language here complained of evidences a failure by the judge to keep his emotions under control. Whether or not the sentences imposed are manifestly excessive is the issue raised in ground 5, to a consideration of which the Court now turns.

Ground 5: The sentences are individually and in their combined effect manifestly excessive.

70 No complaint has been made about the length of the sentences imposed for the unlawful detention offences, although the applicant complains about the commencement date for the second of those offences. It is to be observed that each of these sentences was to be served concurrently with a sentence for aggravated sexual intercourse. For the purpose of this ground, the applicant focuses upon the sentences for the offences under s 61J of the Crimes Act.

71 Whilst the applicant acknowledges that the earlier of the offences of aggravated sexual intercourse was appropriately increased by one to two years by reason of the impact of the Form 1 offences, the submission is made that a head sentence of fifteen to sixteen years, putting to one side the Form 1 offences, is manifestly excessive having regard in particular to these matters:

(a) the maximum penalty of twenty years is to be reserved for the worst category of case for which that penalty is prescribed: see Ibbs v The Queen (1987) 163 CLR 447 and Veen v The Queen (No. 2) (1987-1988) 164 CLR 465 at 478;

(b) the applicant’s age at the time of the commission of the offence;

(c) the malign influence of his elder brother;

(d) the applicant’s antecedents.

72 As to (a), the offence which the applicant committed was not in the worst category but it was a most serious offence. The judge was correct to describe it as being both “degrading” and “disgusting”. Ms C was a young woman, barely eighteen years of age, and the judge found that Ms C had suffered greatly and would continue to do so. Moreover, the applicant was found to have a leading role in the events that occurred at the toilet block and there was ample evidence to warrant that conclusion.

73 As to (b), the judge made no reference to s 6 of the Children (Criminal Proceedings) Act, but it is apparent that his Honour had regard to the applicant’s age. Indeed, he indicated that he found assistance in the decision of this court in R v AEM & Ors [2002] NSWCCA 58 because of the guidance it provided in cases where the offenders were young and the victim was young (ROS 29-30).

74 Two of the offenders in AEM were juveniles and the third offender was nineteen years of age when the offences were committed. The female victims were sixteen years of age. Each offender pleaded guilty to two offences under s 61J of the Crimes Act. In the joint judgment of Beazley JA, Wood CJ at CL and Sully J, their Honours addressed the considerations of the youth of the offenders and the matters of deterrence and denunciation (at pp 22-23, paras [97]-[98]):

“97 It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation: see R v DAR (unreported, New South Wales Court of Criminal Appeal, 2 October 1997); R v Mazzilli [2001] NSWCA 117. However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society. Lee AJ commented on this in Nichols at 395:

‘True it is … that the courts consistently point out the need to give young offenders a chance and to refrain from sending them to gaol or dealing heavily with them if that course can be avoided … However, there is a point at which the seriousness of the crime committed by a man of 19, even though a young man, is of such a nature, is so great, that that principle must, in the public interest, give way .’ (emphasis added)
98 Earlier in Pham (1991) 55 A Crim R 128 Lee CJ at CL said at 135:
‘It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes …’
See also R v Tran [1999] NSWCCA 109 at 9 - 11.”

75 What was said in AEM is apt in the circumstances of the applicant’s case. Whilst the youth of this applicant remained a relevant feature, proper weight had to be given to considerations of denunciation, deterrence and retribution, and for this to occur due regard had to be afforded to the nature and circumstances of the applicant’s crimes, including his leadership role at Marion Street.

76 As to (c), Bilal Skaf was not present when the meeting with Ms C first took place. The evidence established, as his Honour found, that this applicant played a leading role in drawing Ms C into the toilet block where he was the first to have intercourse with her. The evidence did not establish that the applicant was influenced by his brother in what he did at Marion Street, or in taking Ms C there.

77 As to (d), whilst the applicant’s antecedents were not unfavourable, the offences for which the applicant stood to be sentenced were extremely serious and there were the earlier Form 1 matters to be addressed as well.

78 Unquestionably, the sentence imposed on the second count was a heavy one but having regard to the gravity of the crime and having regard to the fact that the Form 1 offences were to be taken into account, this Court considers that the sentence was within the available discretionary range, and, indeed, that it was entirely appropriate.

79 Turning to the second of the offences of aggravated sexual intercourse, it is again submitted that the sentence of fifteen years was manifestly excessive and, moreover, it is submitted that the extent of the accumulation resulting in a head sentence of twenty-three years was not a proper reflection of the totality of the applicant’s criminality.

80 The offence of aggravated sexual intercourse committed by the applicant at Chullora was an offence to be regarded very seriously. The applicant had an awareness of what had happened to Ms C earlier in the evening and, having, regard to all the relevant circumstances and viewed individually, the head sentence of fifteen years was within the available range.

81 Having set this particular sentence, it was necessary for the judge to consider questions of cumulation, concurrence and totality: Mill v The Queen (1988) 166 CLR 59 and Pearce v The Queen (1998) 194 CLR 610.

82 The sentence for this particular offence was so structured that the non parole period set for the Marion Street s 61J offence was not extended. What was extended was the head sentence, and this by a period of six years. It was submitted that this was too long a period.

83 Having regard to the circumstance that the later offence was committed within hours of the earlier s 61J offence, and bearing in mind the applicant’s age, the Court is persuaded that an effective increase in the overall head sentence by six years for the second s 61J offence resulted in the imposition of a sentence for that second sexual offence which was manifestly excessive.

84 It follows that the intervention of this Court is warranted.

85 However, the Court does not consider any lesser sentences than those set by the primary judge should be imposed for the offences the subject of counts 1 and 2.

86 The Court has considered the evidence concerning the applicant’s ill health referable to the Hodgkin’s disease. There was a period of six months approximately of chemotherapy and there were the complications referred to earlier in this judgment. The prognosis appears to be favourable and whilst the applicant will require monitoring by Dr MacCallum over the next three years, it appears to be unlikely that his condition will regress.

87 Seemingly the treatment which the applicant has received for his condition within the prison system has been appropriate. The Court does not ignore the added hardship of imprisonment referable to the onset of the disease, its treatment and its disturbance of ordinary prison routines for the applicant, but the Court does not consider the non parole period presently in place by reason of the sentence imposed for the earlier of the offences under s 61J should be disturbed. In all the circumstances, this Court considers that the applicant should serve no less a non parole period than the period of eleven years presently in place.

88 The judge did not add to the non parole period already fixed for the count 2 offence when imposing the sentence for the later s 61J offence, and in re-sentencing the applicant this Court will not deprive the applicant of that advantage. By reason of the applicant’s age, the fact that the applicant is experiencing his first period in custody, the length of the sentence and the interests of the applicant’s rehabilitation when ultimately he is eligible for release on parole, there are special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act.

89 This Court considers that fifteen years imprisonment is a proper head sentence for the count 15 offence. However, to give due effect to the totality principle, it is considered that a commencing date should be set for this sentence so that it expires two years after the head sentence for count 2.

90 This Court considers that the second of the unlawful detention offences the subject of count 14 calls for a head sentence of five years to be served concurrently with the sentence for the count 15 offence. The Court will not set a non parole period for this sentence having regard to the sentence to be imposed in respect of count 15.

91 The overall effect of the sentences to be put in place is an aggregate period of imprisonment of nineteen years with an overall non parole period of eleven years.

Formal orders

92 The formal orders of the Court are as follows:

1. Leave to appeal against the sentences imposed is granted, and the appeal is allowed;

2. The sentences imposed in respect of counts 1 and 2 are confirmed;

3. The sentence imposed in respect of count 14 is quashed;

4. In lieu thereof, the applicant is sentenced to a term of imprisonment of five years to commence on 1 January 2005 and to expire on 31 December 2009;

5. The sentence imposed in respect of count 15 is quashed;

6. In lieu thereof, the applicant is sentenced to imprisonment for a term of fifteen years, also to commence on 1 January 2005 and to expire on 31 December 2019, with a non parole period to commence on 1 January 2005 and to expire on 2 January 2012.

7. The first date upon which the applicant will be eligible for release upon parole is 2 January 2012.

**********