Regina v Mohamed Sanoussi

[2005] NSWCCA 323

CITATION:	Regina v Mohamed Sanoussi [2005] NSWCCA 323
HEARING DATE(S):	25 July 2005
JUDGMENT DATE:	16 September 2005
JUDGMENT OF:	Studdert J; Bell J; Latham J
DECISION:	(1) Leave to appeal is granted. (2) The appeal against the sentences imposed is allowed and the sentences imposed in the District Court are quashed. (3) In lieu thereof, the applicant is sentenced as follows:- Counts 1 and 6: Three years' imprisonment to date from 26 September 2000, expiring on 25 September 2003. Count 3: Eleven years three months' imprisonment to date from 26 September 2000, expiring 25 December 2011. A non parole period of five years is specified, to expire on 25 September 2005. Count 4: Eight years' imprisonment to date from 26 September 2000, expiring on 25 September 2008. A non-parole period of four years is specified, to expire 25 September 2004. Count 2: Three years' imprisonment to date from 26 September 2002 expiring on 25 September 2005. Count 5: Eight years' imprisonment to date from 26 September 2002, to expire on 25 September 2010. A non parole period of three years is specified, to expire on 25 September 2005. Charge 1 (30 August 2000): Eleven years' imprisonment to date from 26 September 2005, expiring on 25 September 2016. A non parole period of five years is specified, to expire on 25 September 2010. Charge 2: Three years' imprisonment to date from 26 September 2005, expiring on 25 September 2008. The first date upon which the applicant will be eligible for release to parole is 25 September 2010.

CATCHWORDS:	Aggravated sexual assault - detention of complainant - offences committed in company when a juvenile - planning - offences committed as principal in the first degree distinguished from offences committed as aider and abetter - totality.
LEGISLATION CITED:	Crimes Act 1900 Children (Criminal Proceedings) Act.
CASES CITED:	R v AEM & Ors [2002] NSWCCA 58 R v AN [2005] NSWCCA 239 at par 41 R v WKR (1993) 32 NSWLR 447 R v Crombie [1999] NSWCCA 297 R v Elomar [2000] NSWCCA 431 R v FF [2000] NSWCCA 493 at pars 28 - 33 R v AD [2005] NSWCCA 208 R v Mahmoud Sanoussi [2005] NSWCCA 322 R v Andrews [2001] NSWCCA 428 Mill v R (1988) 166 CLR 59 at 62 - 63 GAS v R 217 CLR 198
PARTIES:	Regina v Mohamed Sanoussi
FILE NUMBER(S):	CCA 2005/289
COUNSEL:	R. Cogswell SC/D. Arnott (Crown) P. Bodor QC (Applicant)
SOLICITORS:	S. Kavanagh (Crown) Heenan & Company Solicitors (Applicant)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/1055
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ

2005/289

STUDDERT J
BELL J
LATHAM J

Friday 16 September 2005

REGINA v MOHAMED SANOUSSI

Judgment

1 THE COURT: The applicant, Mohamed Sanoussi, seeks leave to appeal against the sentences imposed by his Honour Judge Finnane QC (the Judge) on 6 September 2002. The applicant pleaded guilty to eight counts charging various sexual offences and detention offences which were committed against three complainants on two separate occasions in August 2000.

2 The aggregate sentence was a term of imprisonment of twenty-one years and three months, with a non-parole period of twelve years. The first sentence was specified to commence on 26 September 2000 to allow for two discrete periods of pre-sentence custody. The last sentence will expire on 25 December 2021, with the earliest date for consideration of the applicants release to parole being 25 September 2012.

3 Six offences arose out of the detention and sexual assault of two complainants, Ms A and Ms B, on 10 August 2000, whilst the applicant was in the company of a number of co-offenders. These six offences were the subject of an indictment. A further two charges arose out of the detention and sexual assault of Ms C on 30 August 2000, when the applicant was in the company of a number of the same co-offenders. The facts upon which the Judge sentenced the applicant for the offences relating to the events of 10 August are set out below:

4 10 August 2000 – Northcote Park – Ms A and Ms B

At about 9:15pm on Thursday 10 August 2000 the victims, Ms A and Ms B, were at the Westfield Shopping Centre at Chatswood. Eight young males approached them, one of whom was Mohamed Sanoussi. Ms A and Ms B were engaged in conversation, offered some marijuana, a drive around and a lift to their homes. One of the males tried to shake hands with Ms A and she saw that he had a condom in his hand. The victims told the males their names.
Ms A and Ms B walked to the car park with the males, who separated into two groups of four. One group, which included Mohamed Sanoussi, got into a white van. The other four males walked away and got into a red coloured hatchback. Mohamed Sanoussi got into the back of the van with the victims. There were no seats in the back of the van. Ms B sat on the floor of the van with the co-offender Bilal Skaf. Ms A also sat on the floor of the van. Mohamed Sanoussi grabbed hold of Ms A and said “come and sit here”. Mohamed Sanoussi pulled her down to sit between his legs, which he put on either side of her.
The other two males were in the front of the van. They drove away from the shopping centre car park. The driver of the white van followed the red car.
Ms A and Ms B were driven in the direction of the city and across the Sydney Harbour Bridge. During this portion of the journey Mohamed Sanoussi indecently assaulted Ms A. He put his hands up and under her skivvy and grabbed hold of her breasts on the outside of her bra. He squeezed her breasts hard. He tried to get his hands under her bra. Ms A kept pushing his hands away and Mohamed Sanoussi said, “don’t you want to have some fun?” Ms A said “No”. Mohamed Sanoussi tried to put his hand down Ms A’s pants; she pushed his hand away and he said, “just let me have some fun”. [Aggravated Indecent Assault – Form 1]
At Parramatta Road, Highway Patrol Police had stopped the red car on the way to the park and traffic infringements were issued to the driver.
Ms A and Ms B were driven to Northcote Park, Greenacre where the offenders separated them and took them to different areas within the park. The victims were detained for sexual advantage over a period of some hours. [Counts 1 and 2]
Ms A was forced to perform oral sex on Bilal Skaf after being told “If you don’t do it, they will probably bash you for not doing anything. It will be in your best interests if you do it now before they come”. She then heard other males coming so she stopped. She walked around near some bushes near the seats and saw the males from the red car running towards her. She also saw Ms B, who was about three to five metres away.
Ms A was tackled to the ground by one of the co-offenders in the presence of Mohamed Sanoussi. When she was on the ground some of the offenders kicked her legs. She was picked up by one of the offenders and thrown into nearby bushes. As she got up she was again tackled to the ground by one of the group. Ms A started to cry and sat on one of the seats. [Common Assault – Form 1]
Ms A was surrounded by five offenders; they were all trying to get her to perform oral sex on them. The co-offender Bilal Skaf allegedly pushed them away and said, “So do it now. I’ll go over and tell them you don’t do anything and they will leave you alone. Do you want to be bashed or not?” He again forced Ms A to perform oral sex on him. Other males were close by.
After Bilal Skaf walked away the other offenders surrounded the victim, who was crying. A co-offender, H, said, “There’s no point in crying, it won’t get you anywhere.” Ms A was threatened and told that the group would bash her. One of the co-offenders produced a flick knife and opened the blade. He said, “you know what’s going to happen if you don’t do it.” He held the knife at his side and was standing in front of Ms A. One of the offenders told the co-offender with the knife to put it away; he did.
The offenders began arguing amongst themselves in a language other than English. Three of the males walked away. One of the offenders threatened to bash Ms A if she did not perform oral sex on him, which she did out of fear and with the others in the group nearby. As she was doing this, the offender called out to his friends “She’s not doing it right.” The offender held her head until he ejaculated in her mouth. She spat the ejaculate onto the ground. [Count 4]
Ms A started to cry again and tried to hide behind a seat in the park. One of the offenders continually threatened to bash Ms A if she did not perform oral sex on him, which she did out of fear and with the others nearby. He said, “we’ll gang bash you if you don’t do what we want”. As the offender was forcing her to perform oral sex on him, he called out “She’s not doing it right. This chick’s shit at head jobs.” He ejaculated and walked away.
H then went to Ms A and threatened to bash her if she did not give him a ‘head job’. H gestured towards Ms A with a clenched fist and threatened her. H forced Ms A to give him oral sex.
Another co-offender approached Ms A and threatened to bash her. He said “I’ll drive you home, but you have to do this first”. She then performed oral sex on this male through fear.
The group of offenders, including Mohamed Sanoussi, again surrounded her, demanding to know if she had any sexually transmitted or other diseases. The co-offender, H, raised his fist to her threatening to bash her if her denials were untrue. Mohamed Sanoussi forced Ms A to give him oral sex. [Count 3]
Mohamed Sanoussi said, “Give me your phone”. She said that she had lost it in the bushes. Mohamed Sanoussi said, “Don’t bullshit me I know you’ve got it”. Ms A said, “No, I lost it, I don’t know where it is”. Mohamed Sanoussi said “You fucken want to be stabbed. I know you put it in your bag.” She then handed her phone to him. [Count 6]
A co-offender demanded Ms A’s handbag. He ripped it from her shoulder and ran off with it. Makeup, a bank key card, a driver’s licence and $40.00 in cash were in the handbag.
Mohamed Sanoussi said “What’s your fucking pin number [for the phone], tell me or I’ll stab you”. Ms A told him the pin number and he programmed it into her mobile phone. He started making calls from the mobile phone. The other males had run off.
Mohamed Sanoussi came back and demanded Ms A’s JAG watch, saying, “I’ve got a knife in my pocket. Give it to me or I’ll stab you. I’m going to fucking count to three. One two …” Ms A took off her watch and held it out. Mohamed Sanoussi snatched it and said “don’t fucking move”, he pushed her into the bushes and ran off.
Whilst these offences were occurring Ms B was in another area of the park. The offenders, including Mohamed Sanoussi, moved around the park and participated in the various assaults.
Ms B was forced to perform oral sex on two co-offenders and was tackled to the ground a couple of times by another co-offender.
Ms B asked after Ms A and was told not to go to her as she was with someone. One of the other co-offenders pulled Ms B towards the toilet block by her arm and demanded that she give him a head job. She refused. Two other co-offenders came behind the toilet block. One co-offender said, “If you don’t do it worse things will happen to you.” He slapped her across the fact. She performed oral sex on one of the co-offenders. [Count 5]
Ms B was tackled to the ground by Mohamed Sanoussi. He pushed Ms B to the ground and said “Don’t make me do anything to you”. [Common Assault – Form 1]
All the boys that were left ran toward the van and drove off.

5 Counts 1 and 2 on the indictment charged the applicant with detaining Ms A and Ms B for advantage contrary to s 90A of the Crimes Act 1900. A maximum penalty of fourteen years imprisonment applied to these offences. For each of these offences his Honour imposed a sentence of three years and nine months imprisonment. However, the sentence on Count 2 was partially accumulated on the sentences imposed in respect of Counts 3 and 4.

6 Counts 3, 4 and 5 on the indictment each charged the applicant with one count of aggravated sexual assault contrary to s 61J of the Crimes Act 1900 to which a maximum penalty of twenty years imprisonment applied. Count 3 was committed as a principal in the first degree, whereas counts 4 and 5 were accessorial only. On Counts 3 and 4 on the indictment, which were offences against Ms A, his Honour imposed a sentence of imprisonment for eleven years and three months, with a non-parole period of seven years. Three offences on a Form 1, being an aggravated indecent assault and two counts of common assault were taken into account by his Honour for the purposes of the sentence imposed on Count 3. Both of those sentences were entirely concurrent and concurrent with the sentence imposed on Count 1. On Count 5 of the indictment, an offence against Ms B, his Honour sentenced the applicant to imprisonment for eleven years and three months, with a non-parole period of six years. That sentence was to commence six years after the commencement of the sentences imposed on Counts 1, 3 and 4.

7 For the robbery in company offence, being Count 6 on the indictment, to which a maximum penalty of twenty years imprisonment applied, his Honour imposed a sentence of three years and nine months imprisonment, which was also wholly concurrent with Counts 1, 3 and 4.

8 Having regard to the sentences imposed for the offences committed on 10 August 2000, the aggregate sentence imposed was one of seventeen years and three months with a non-parole period of twelve years.

9 30 August 2000 – Bankstown – Ms C

On the afternoon of 30 August 2000, Ms C was travelling on a westbound train from Belmore. The young person Mohamed Sanoussi and approximately four other young males approached Ms C on the train and sat next to her, opposite her and behind her. A co-offender started asking Ms C a number of personal questions. Another co-offender, Mahmoud Sanoussi, who was sitting next to Ms C placed his arm around her and started rubbing her shoulder. Another co-offender, H, asked Ms C whether she had ever had sex with a Lebanese man.
A co-offender convinced Ms C to disembark from the train at Bankstown Railway Station. The lures used were the opportunity to smoke marijuana with the young males, and the promise of a lift home. The young males walked from the station with Ms C, one of them placing his arm around her. The group, with Ms C walked to the 7-11 store in Bankstown.
Ms C received a call from a friend on her mobile phone. One of the co-offenders took Ms C’s phone from her, and placed it down his pants.
The young males, with Ms C, walked to a nearby toilet block in Marion St Bankstown. The co-offender with Ms C’s mobile phone entered the toilet block momentarily, coming out and saying to Ms C “You’re up”. He had her mobile phone in his hand. Ms C thought he meant it was her turn for a smoke.
Ms C entered the toilet block. There followed non-consensual acts of sexual intercourse with two co-offenders, one after the other, while the door was held shut by the other males outside.
Mohamed Sanoussi then walked in. He looked at Ms C and said “It’s my right”. He then grabbed her by the shoulders and stood her up. Mohamed Sanoussi sat on the toilet, unzipped his pants and said to Ms C “I like a little bit of head before I fuck”. Ms C fell to her knees in exhaustion. Mohamed Sanoussi forced his penis into her mouth and moved it in and out. [Charge 1] When he was fully erect he placed a condom on his penis. He told her he wanted her to sit on him. She was frightened and did what he said. He held onto Ms C and tried pouncing her up and down. She felt him ejaculate. After he ejaculated he looked at her and said “Did you have a good time?” Ms C shook her head. He said “That’s surprising, I’m supposed to be the best”.
During the assault, Ms C could hear the others outside.
A co-offender entered the toilets and in a similarly coercive fashion, forced Ms C to perform oral sex upon him.
Throughout the assaults committed by his co-offenders, Mohamed Sanoussi was present outside the toilet block and assisted in Ms C’s detention for the purpose of the sexual advantage of his co-offenders. [Charge 2]
When Ms C was finally allowed to leave the toilet block area, other events not involving Mohamed Sanoussi occurred.

10 The applicant was charged with two offences arising out of these events. The first charge was aggravated sexual assault contrary to s 61J Crimes Act 1900 to which a maximum penalty of twenty years imprisonment applied. The applicant pleaded guilty and was sentenced on the basis of the act of oral intercourse, not the act of penile penetration which followed (ROS 13). For this offence the applicant received a sentence of imprisonment for eleven years and three months to commence on 26 September 2010, with a non-parole period of two years.

11 The applicant was charged with a further count of detain for advantage in relation to the detention of Ms C. On that offence the applicant was sentenced to a term of three years and nine months imprisonment to commence on 26 September 2010, with a non-parole period of two years.

The Grounds of Appeal

12 Three grounds of appeal were argued, namely:

1. The overall sentence imposed was too severe
2. The sentencing judge failed to give sufficient weight to the age of the applicant and considerations of youth
3. The sentencing judge erred in failing to consider the exercise of his discretion under s 18 of the Children’s (Criminal Proceedings) Act .

13 It is convenient to deal with grounds 2 and 3 before returning to the question posed by ground 1.

Ground 2 : Failure to give sufficient weight to considerations of youth

Ground 3 : Failure to consider the exercise of discretion under s 18 Children (Criminal Proceedings) Act

14 At the time of the commission of the offences, the applicant was four months shy of his seventeenth birthday. It is conceded by the applicant that the Judge was aware of the applicant’s age, but it is submitted that when sentencing the applicant, the Judge failed to take into account the applicant’s age at the time of the offences. Reliance is placed on the following features of the remarks on sentence:

i) No specific reference was made to the fact that the applicant was a juvenile at the time of the offences.

ii) No specific reference was made to the principles applicable to sentencing juveniles and no attempt was made to distinguish young offenders from juveniles under eighteen years of age.

iii) The decision of R v AEM & Ors [2002] NSWCCA 58 was misunderstood or misapplied.

iv) No direct reference was made to s 6 Children (Criminal Proceedings) Act .

15 In the course of the remarks, the Judge adverted to general sentencing principles, including the requirement to take into account the age of the offender (ROS 3). When setting out in summary form the applicant’s subjective case, his Honour referred explicitly to the applicant’s birth date (ROS 17). Moreover, the proceedings on sentence were littered throughout with references by the applicant’s then counsel and the Judge to the Juvenile Justice Department and to the reports from that Department which were a significant part of the applicant’s subjective case (Exs. B, C and H). In addition, the Judge made a direction under s 19 of the Children (Criminal Proceedings) Act that the applicant serve his sentence in a Juvenile Justice Centre (ROS 23). We do not regard as in any way significant or problematic that his Honour did not use the term “juvenile” in the course of the remarks on sentence when describing the applicant.

16 Similarly, the absence of any reference to the principles applicable to sentencing juveniles as opposed to young offenders generally (that is, offenders over the age of 18 years) does not establish that his Honour was not mindful of those principles. To the extent that he paid particular regard to the judgment of this Court in R v AEM & Ors (ROS 3), he could not have failed to appreciate the significance of youth and its interplay with other important sentencing principles, such as denunciation, deterrence and retribution. His Honours says as much:

That decision is important because it gives guidance on the correct principles to apply in sentences for offences of sexual intercourse without consent in circumstances of aggravation, where the aggravation that is alleged is that the offence was committed in company where the offenders were young and the victims were young.

17 The provisions of s 6 of the Children (Criminal Proceedings) Act appear at par 57 of this Court’s decision in R v AEM & Ors. Indeed, a portion of the judgment is occupied by an examination of the interrelationship between general deterrence and the youth of an offender (pars 96 – 102).

18 Two of the offenders in AEM were juveniles. One of those juveniles was only two months older than the applicant at the time of the commission of their respective offences. In our view, there is no realistic prospect that his Honour was not acutely aware of the applicant’s status and the principles relevant to that status.

19 In any event, we would not readily assume that an experienced judge has overlooked well-known sentencing principles simply because no specific reference has been made to those principles: R v AN [2005] NSWCCA 239 at par 41.

20 The applicant’s complaint that his Honour misunderstood or misapplied R v AEM relies upon the observation at ROS 4 that “the Court of Criminal Appeal has also made it clear that these were adult offences and the offenders deserved to be sentenced on that basis”. The applicant submits that this comment indicates his Honour was treating AEM as authority for a general proposition or guideline requiring all young sexual assault offenders to be sentenced as adults. However, that is a somewhat literal interpretation of one statement among many in a passage starting at the middle of ROS 3 and concluding at the top of ROS 4. The passage in question opens with the remark set out above at par 16, briefly refers to factual differences between AEM and the applicant’s case and notes that the principle of double jeopardy applied to the sentences imposed in AEM by this Court. Against that background, we are not persuaded that the Judge misunderstood or misapplied AEM in the manner suggested by the applicant.

21 Ground 3 may be briefly dealt with. The asserted error is a failure to have regard to the terms of s 18 of the Children (Criminal Proceedings) Act, which required the applicant to be sentenced either according to law or according to the penalties available in the Children’s Court for the offences of Detain for Advantage (three counts) and Robbery.

22 It is also submitted that the failure to consider the provision strengthens the applicant’s contention that the Judge gave insufficient weight to the applicant’s age. We would reject this latter submission for the same reasons set out in relation to Ground 2 of the appeal.

23 The factors relevant to the exercise of the Judge’s discretion at the time of sentence, were he to contemplate dealing with the applicant other than at law for four offences only, were:-

(a) the nature of the particular offence for which the offender is standing for sentence;
(b) the age and the maturity of that offender (both at the time of the offence and when standing for sentence); and
(c) the nature of the penalty which would be appropriate to the circumstances of the case in the light of those matters.
If the offence were a grave or serious one (albeit not one falling within the definition of a serious indictable offence), and if the offender standing for sentence were of such an age and maturity that he did not deserve the benefit of the special provisions of Pt 3, Div 4 when being punished for such a grave or serious offence, the judge would be more likely to determine that he should be dealt with according to law rather than in accordance with Pt 3, Div. 4. Similarly, if it were appropriate that the offender standing for sentence should serve a custodial sentence in a detention centre plus a period of parole under supervision thereafter, the judge would be obliged to determine that he be dealt with according to law rather than in accordance with Pt 3, Div 4.
R v WKR (1993) 32 NSWLR 447

24 Having regard to these matters, it cannot seriously be suggested that it was open to his Honour to deal with the applicant other than according to law. The applicant does not contend otherwise. Rather, the argument is that, by failing to take into account the theoretical availability of summary jurisdiction for these particular offences, the Judge imposed excessive sentences. The applicant relies, in support of this proposition, on R v Crombie [1999] NSWCCA 297.

25 However, it has been doubted that the principles enunciated in Crombie and R v Elomar [2000] NSWCCA 431 have any application to the circumstances presently under consideration : R v FF [2000] NSWCCA 493 at pars 28 – 33.

26 We are also of the view that where there is no proper basis for dealing with a juvenile offender in the Children’s Court, there is no basis for a sentencing judge to take into account what sentence might have been imposed in that jurisdiction : R v AD NSWCCA 208. Grounds 2 and 3 fail.

Ground 1 : The sentence imposed was too severe

27 The applicant submits that both the individual penalties imposed for each offence and the aggregate sentence are excessive. It is said that the totality of the applicant’s criminality does not warrant a sentence of the magnitude imposed and that the extent of the accumulation reveals error.

28 Turning first to the individual sentences, the sentences imposed on the Detention and Robbery offences were the subject of challenge under Ground 3 of the appeal. No other argument was advanced to support the submission under this Ground. We do not regard sentences of three years and nine months on each of these charges as beyond the Judge’s sentencing discretion.

29 The principal submission advanced under this ground regarding the individual sentences is that the starting point of fifteen years for each count under s 61J was too high, given the applicant’s youth and the absence of a criminal history. Further, it is said that the failure to differentiate between the facts of each of the s 61J offences also demonstrates error.

30 The applicant points to the Judicial Commission statistics for s 61J offences between 1996 and 2002. These statistics establish that a sentence of fifteen years imprisonment, before the application of the discount for an early plea of guilty, is at the upper end of the scale of sentences imposed for offences under s 61J.

31 There is some force in the applicant’s argument to the extent that his Honour did not differentiate, for the purposes of determining individual sentences, between the act of forced oral intercourse committed by the applicant, as a principal in the first degree against Ms A and Ms C, and the acts of forced oral intercourse committed against Ms A and Ms B as a principal in the second degree. It is difficult to discern how the objective criminality of the applicant could be said to be the same in each case. To put it another way, the two acts of forced oral intercourse committed by the applicant as an aider and abetter, whilst theoretically exposing the applicant to the same maximum penalty, do not give rise to the same level of culpability as the offence committed by the applicant against Ms A and Ms C as a principal in the first degree. We acknowledge that there may be circumstances where a dominant aider and abetter is as culpable as a principal: GAS v R 217 CLR 198. However, there was no evidence before his Honour on counts 4 and 5 which was capable of casting the applicant in that role.

32 We do not, however, regard the imposition of fifteen years imprisonment for offences committed as a principal, of the nature under consideration as beyond the scope of the sentencing discretion. As we have noted in the course of the judgment in R v Mahmoud Sanoussi [2005] NSWCCA 322, the circumstances of the acts of forced oral intercourse committed against Ms A and Ms C were so objectively grave, that there may be little to differentiate them from acts of penile-vaginal intercourse. (See R v Andrews [2001] NSWCCA 428)

33 We turn to the question of totality. His Honour structured the sentences in such a way that the aggregate sentence of eleven years three months for the offences committed on 10 August against Ms B were accumulated by six years upon the aggregate sentence of eleven years three months for the offences committed on 10 August against Ms A. Thus, his Honour arrived at an aggregate sentence of seventeen years three months, with a non-parole period of twelve years for all the offences of 10 August. An aggregate sentence of eleven years three months was then set for the offences against Ms C on 30 August. That sentence was accumulated by a period of four years on the aggregate sentence for the offences of 10 August, albeit an adjustment was made to the non-parole period to reflect special circumstances.

34 The approach to be taken to the adjustment of a number of sentences in order to reflect the principle of totality is well established : Mill v R (1988) 166 CLR 59 at 62 – 63.

35 It is not suggested that a degree of accumulation was not warranted by the commission of a number of offences against separate complainants. At the end of the sentencing exercise, the total sentence imposed on the applicant must be appropriate to his overall criminality, taking into account his prior good character and subjective circumstances. In our view, an effective sentence of twenty-one years three months was excessive in all the circumstances. The applicant’s submission that his Honour erred in almost wholly accumulating the sentences for offences committed against Ms B upon the non-parole period imposed for the offences committed against Ms A has been made good.

Re-sentencing

36 It falls to the Court to re-sentence the applicant. For this purpose, we have had regard to a number of reports, which were before the Judge at first instance.

37 The applicant is the middle of three sons, all born in Australia to parents of Lebanese origin. The applicant is now twenty-one years of age. He was brought up in the Muslim faith. The applicant has a congenital deformity, namely no fingers on the right hand, but for his thumb. His development as a young child was delayed, although he attended school from Kindergarten until year eight without incident. However, in years nine and ten, he became disruptive, began truanting and appeared to lose interest.

38 Following his admission to custody in late 2000 as a result of these offences, the applicant completed year eleven, albeit he required intensive supervision. He was described as “barely literate”, a somewhat puzzling assessment, given that he completed year ten. His employment history has been limited to assisting family members. He has been assessed as functioning marginally above the range for developmental disability, but in the light of his level of schooling, it is considered that the assessment is not an accurate measure of the applicant’s level of functioning. The disparity between the assessment and the applicant’s results at school is not wholly satisfactorily explained.

39 The applicant’s deformity is said to have played a role in his low self-esteem and poor social skills, thereby contributing to his susceptibility to negative peer influences. During his time in custody, he has been treated for depression and attempts at self-harm. He has also completed several constructive courses which have improved his self-esteem. His participation in counselling and his acceptance of responsibility for his offences augurs well for his prospects of rehabilitation.

40 In re-sentencing the applicant, we would confirm the finding of special circumstances made below, given the applicant’s youth and the desirability of a lengthy period of supervision in the community following his release. The applicant is also entitled to the discount identified by the Judge as appropriate to the utilitarian value of the pleas, namely twenty-five percent.

41 For the reasons expressed above (par 31), we would vary the sentences to be imposed for offences committed as an accessory, from those to be imposed for the two offences committed by the applicant as a principal. However, the sexual assault committed against Ms C, being Count 3 on the indictment, calls for condign punishment, given its objective gravity and the three further offences to be taken into account on the Form 1.

42 The Court considers that there should be a degree of accumulation between the sentences for the offences against Ms A and Ms B, on the one hand, and those committed against Ms C on the other hand. Similarly, some partial accumulation is warranted between the sentences for the offences against Ms A and those to be imposed for the offences against Ms B. The sentences to be imposed for the detention offences may be served wholly concurrently with the sentences imposed for the sexual assault offences, in that the detention of each complainant was an adjunct to the sexual assaults. In the result, we propose an aggregate sentence of sixteen years’ imprisonment with an aggregate non parole period of ten years.

Formal Orders and Sentences

1. Leave to appeal is granted.

2. The appeal against the sentences imposed is allowed and the sentences imposed in the District Court are quashed.

3. In lieu thereof, the applicant is sentenced as follows:-

Counts 1 and 6 : Three years’ imprisonment to date from 26 September 2000, expiring on 25 September 2003.

Count 3 : Eleven years three months’ imprisonment to date from 26 September 2000, expiring 25 December 2011. A non-parole period of five years is specified, to expire on 25 September 2005.

Count 4 : Eight years’ imprisonment to date from 26 September 2000, expiring on 25 September 2008. A non-parole period of four years is specified, to expire 25 September 2004.

Count 2 : Three years’ imprisonment to date from 26 September 2002 expiring on 25 September 2005.

Count 5 : Eight years’ imprisonment to date from 26 September 2002, to expire on 25 September 2010. A non-parole period of three years is specified, to expire on 25 September 2005.

Charge 1 (30 August 2000) : Eleven years’ imprisonment to date from 26 September 2005, expiring on 25 September 2016. A non-parole period of five years is specified, to expire on 25 September 2010.

Charge 2 : Three years’ imprisonment to date from 26 September 2005, expiring on 25 September 2008.

The first date upon which the applicant will be eligible for release to parole is 25 September 2010.

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