Regina v MSK, Regina v MAK, Regina v MMK

[2006] NSWSC 237

CITATION:	REGINA v MSK, REGINA v MAK, REGINA v MMK [2006] NSWSC 237
HEARING DATE(S):	10/05/05-12/05/05, 16/05/05-20/05/05, 23/05/05-27/05/05, 30/05/05-03/06/05, 06/06/05-10/06/05, 14/06/05-16/06/05, 20/06/05, 22/06/05, 24/06/05, 18/07/05, 21/07/05, 28/10/05, 09/12/05, 16/12/05
JUDGMENT DATE :	5 April 2006
JUDGMENT OF:	Hidden J at 1
DECISION:	See paragraphs 60, 61, 94, 118
CATCHWORDS:	CRIMINAL LAW: Sentence - sexual assaults
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Children (Criminal Proceedings) Act 1987
CASES CITED:	R v MAK & Ors [2005] NSWCCA 369 Neal v The Queen (1982) 149 CLR 305 Shannon (1991) 56 A Crim R 56 Hales v Jamilmira (2003) 142 NTR 1 R v MSS [2005] NSWCCA 227
PARTIES:	REGINA (Crown) MSK (offender) MAK (offender) MMK (offender)
FILE NUMBER(S):	SC 2003/158; 2003/3; 2003/149
COUNSEL:	Mr K McKay (Crown) Mr S Odgers SC (MSK) Mr S Hanley (MAK) Mr A Haesler SC (MMK)
SOLICITORS:	Mr S Kavanagh - Solicitor for Public Prosecutions Mr K Kyriacou - Kiki Kyriacou Lawyers Mr C Abbott - Watsons Ms C Barmes - A L Wunderlich & Co

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

HIDDEN J

Wednesday 5 April 2006

2003/158 REGINA v MSK
2003/3 REGINA v MAK
2003/149 REGINA v MMK

NON-PUBLICATION ORDER – names of offenders & victims

JUDGMENT – REMARKS ON SENTENCE

1 HIS HONOUR: The three offenders, MSK, MAK & MMK, are before me for sentence on a number of charges of sexual assault. They are brothers, and MMK was a juvenile at relevant times. It is for that reason that publication of their names has been suppressed. Each of them is currently serving substantial terms of imprisonment imposed by Sully J for other sexual assaults. Their appeals against those sentences were unsuccessful: R v MAK & Ors [2005] NSWCCA 369.

2 Although there is some overlap between the offences for which they now face sentence, it is convenient to deal with the case of each of them separately. All the victims are young women who were teenagers at the time of the offences, and publication of their names has also been suppressed.

MSK

3 The offender, MSK was found guilty at trial of four counts of sexual intercourse with the victim, TW without her consent and in circumstances of aggravation. That is an offence under 61J of the Crimes Act, carrying a maximum sentence of twenty years imprisonment. Those offences were committed on 14 June 2002. He has also pleaded guilty to an offence under the same provision against the victim, CH. That offence was committed on 14 July 2002.

Offences against TW

4 At the trial there was detailed evidence of the events of the evening of 14 June 2002. For the purpose of sentence, a relatively brief summary of the facts as the jury must have found them will suffice.

5 On that evening, TW went with two of her friends to the home at Ashfield where the offender and his brothers lived. The gathering had been arranged by one of her friends, but she herself did not know the offender or any of the other residents at the home. She was fourteen years old at the time. There was evidence that she told the men that she was fifteen, but nothing turns on this for present purposes.

6 The group socialised for a time in the lounge room, and the men produced alcohol. The victim had a number of glasses of vodka and coke and became intoxicated. The Crown prosecutor submitted that I should find that the offender was a party to providing her with alcohol so as to weaken her resistance to sexual advances. I would not make that finding but, in any event, I do not consider it either to be a matter of significance. What the evidence does reveal is that the offender did in fact take advantage of her intoxicated state to achieve sexual contact with her.

7 At one stage she was sitting on a lounge between the offender and his brother, MAK. There was some evidence that she placed her hand on the offender’s leg in a flirtatious manner. Her own evidence was that the offender put his arm around her while MAK touched her leg and that she, feeling uncomfortable about this, got up and went to the bathroom at the back of the house. Yet again, I do not find this conflict of such significance as to require resolution. No sexual advantage should have been taken of a girl of her age and in her state of intoxication, whatever the circumstances.

8 When she returned to the lounge room, MAK took her to a bedroom off the hallway which adjoined the lounge room. The bedroom was in darkness. There, after some kissing, he inserted his finger into her vagina and had penile/vaginal intercourse with her over her protests. This gave rise to the first two counts, the offender having been in company with MAK at the time, that is, in close proximity to the bedroom, sharing with MAK his intention to have intercourse with TW whether or not she consented, and encouraging him to do so.

9 MAK left the room and the offender entered it. He massaged TW’s head, apparently in an attempt to relax her. She told police in a recorded interview that at this stage she was “kind of totally out of it.” He then had penile/vaginal intercourse with her, again over her protests, ejaculating inside her. It was this conduct which led to the third count. That count was left to the jury on the basis that the circumstance of aggravation was either that MAK was in the offender’s company in the relevant sense, or that TW was under the age of sixteen. The verdict does not tell us which circumstance of aggravation the jury found but, clearly, both were available on the evidence.

10 The offender left the room, whereupon a man who cannot be conclusively identified on the evidence came in. That man also had penile/vaginal intercourse with her against her will. Immediately prior to that act she kicked him, and he slapped her face and threatened to stab her. (The Crown did not suggest that he in fact had a knife.) The offender would not have been aware of this violent episode and, despite a submission by the Crown prosecutor to the contrary, I am not satisfied to the requisite degree that he anticipated that conduct of that kind might occur. This third incident gave rise to the fourth count, the offender again having been in company with that man in the relevant sense.

11 TW left the room after the third incident and complained to her two friends about what had occurred. Shortly afterwards, the three of them left the home and MAK drove them to a nearby railway station.

12 Of course, these offences are serious not just because of the behaviour of each of the men involved in the bedroom, but also because they were clearly engaged in a joint criminal enterprise to have sexual intercourse with TW whether or not she consented. In s61J of the Crimes Act Parliament has recognised that fact of combination as a matter which significantly aggravates the offence of sexual intercourse without consent, quite apart from the victim’s youth.

13 That said, a bare recital of the facts provides little insight into the serious and enduring consequences of these offences upon the unfortunate victim. TW read to the Court a victim impact statement, expressing eloquently the resultant deterioration of her health and her mental wellbeing. She began by saying, “For the rest of my life, a smell, or a sound, or something that is really small and insignificant, will trigger off a memory about what happened.” She described her experience as “a hurt that will not go away.” Among other things, she spoke of a loss of confidence and self-esteem, and the compromise of her relationships with family, friends and associates. Not surprisingly, her perception of appropriate relationships with men has been distorted. Her studies in the crucial last year of secondary schooling have been adversely affected. She also described the stress she experienced as a result of the long delay in the case coming to trial, a matter to which I shall return.

14 It must be borne in mind, of course, that TW’s statement relates to the whole of her experience that evening, not just the actions of the offender himself.

Offence against CH

15 On 18 July 2005 the offender pleaded guilty to a charge of sexual intercourse with CH without her consent in circumstances of aggravation, namely, that she was under sixteen years of age at the time.

16 The agreed facts are that in the evening of 14 July 2002, by arrangement, the offender, his brothers MAK and MMK, and another young man whom I shall call RS, picked up CH at Bexley North in MAK’s car. They then picked up another young lady at Fairfield, and proceeded to the Ashfield home. CH was thirteen years old at the time.

17 In one of the bedrooms at that home MMK had consensual sexual intercourse with CH. He left the bedroom, whereupon the offender entered it, seized CH by the arm, and said, “I’m going to fuck you too.” He told her that he had hung his previous girlfriend from a balcony in Iraq. Not surprisingly, the victim became extremely fearful for her safety. The offender then had penile/vaginal intercourse with her without her consent, saying during this assault, “I choked her, I choked her, I killed her, I strangled her.” He withdrew from her before he ejaculated, and left the room.

18 Shortly afterwards, RS entered the room and also sexually assaulted the victim. The offender then returned to the room and acted in a threatening manner towards her. After he left, MMK returned to the room and the victim complained to him about the actions of the other two men. She walked out of the room and began to scream and cry. A short time later she was driven back to Bexley North by MAK and MMK.

19 Some weeks later CH was interviewed by police and provided a detailed account of her ordeal. In mid-September of the same year, she identified the offender, among others, in a power point computer identification presentation.

20 It is not suggested that the offender bore any criminal responsibility for the sexual assault upon the victim by RS. Clearly, what he said about his violence towards his previous girlfriend was intended to terrify CH into submission. The Crown prosecutor argued that it was also intended to deter her from reporting the offence, but I would not draw that conclusion. The offender gave evidence, which I accept, that he did not know how old she was, although it is not in dispute that he knew she was under sixteen.

21 CH also provided a victim impact statement, detailing the deleterious effect upon her of the offence. As she put it, “The night of 14 July 2002 has changed me forever.” She contracted an infection, which could cause her problems later in life. She was diagnosed as suffering from post-traumatic stress disorder. She has suffered anxiety and depression, which have not been relieved by years of counselling and therapy. She described a loss of confidence and trust in others, compromising her friendships and leaving her isolated. She had been a successful and ambitious student, but she did not complete her schooling and undertook an apprenticeship. She expressed her lack of fulfilment in life by writing, ”My own regret in relation to my lost dreams is a constant torment.”

22 Again, it must be borne in mind that CH’s statement relates to the sexual assault by RS as well as that by the offender.

Subjective case

23 The offender was twenty-three years old at the time of the offences and is now twenty-seven. I have referred already to his conviction before Sully J of a number of sexual assaults, and it will be necessary to refer later to the effective sentence he is serving in relation to them. It should be noted, however, that those offences were committed on 27 July 2002, after the offences with which I am dealing. Otherwise, his criminal record consists of an entry in 2005 for two counts of common assault, arising from an incident which occurred in Court during his trial before me, and two other entries of no present significance. Obviously, the incident giving rise to the charges of common assault also occurred after the offences with which I am dealing. Accordingly, at the time of these offences he had no criminal record of any significance.

24 He was born and raised in Pakistan, in a small village near the border with Afghanistan. He is the eldest in a large family. His father is a doctor, who was in general practice in that village. On his own account, his father was a strict man but he had a comfortable upbringing. He completed his secondary education.

25 Between January 1998 and June 2002 he travelled to this country on nine occasions. Initially, he was sent here by his father to enrol at a university to study medicine, but that did not eventuate. On most occasions he stayed here for periods of a month or less. However, in 2000 he stayed for about ten months and obtained employment in the security industry. The ninth and final trip to Australia was in June 2002, when he intended to settle here permanently. He arrived only a matter of days before the offences involving TW.

26 In the meantime, he had married in Pakistan and the union produced a son, who is now about six years old. Over a period other members of the family, including his parents, moved here. However, at the time of the offences he was living at the house in Ashfield with his brothers, but without parental supervision. His wife and child arrived here after he had been taken into custody in August 2002.

27 There is a deal of evidence before me about the offender’s psychiatric health and, in particular, his mental state at the time of the offences. The Crown prosecutor tendered a psychological report of Dr John Baron of 13 February 2004, prepared in anticipation of the sentence proceedings before Sully J. Mr Odgers SC, for the offender, tendered reports of Professor David Greenberg, psychiatrist, of 4 and 27 October 2005, based upon a number of consultations between May and October of that year. Professor Greenberg also gave oral evidence, as did the offender himself.

28 He gave Professor Greenberg a history of visual and, more particularly, auditory hallucinations since his mid-teens. He described hearing Satanic voices, which told him to do “bad things.” He said that there was no psychiatrist in the area where he lived, and his father treated him with various anti-psychotic medications. The medication was successful in suppressing his hallucinatory experiences, and he maintained it over the years.

29 His account to Professor Greenberg and his evidence was that, unfortunately, he did not bring the medication with him when he arrived in Australia in June 2002. He began to experience the voices again, telling him to harm himself and others, although this did not lead him to seek medical attention. He said that the voices commanded him to perpetrate the sexual assaults upon TW and CH in the manner he did. He also said that on both occasions he had drunk alcohol and become intoxicated, and that this aggravated his experience of the voices. I might add that he proffered to Professor Greenberg a similar explanation for the offences for which he was dealt with by Sully J.

30 In evidence, he also sought to explain the offences by reference to his cultural background. Mr Odgers tendered a report, together with an addendum, by Professor Michael Humphrey, head of the school of Sociology and Anthropology at the University of New South Wales. Professor Humphrey also gave oral evidence. The Crown prosecutor objected to this evidence, but I received it provisionally and invited argument about its admissibility in final submissions on sentence.

31 Professor Humphrey was familiar with the area of Pakistan where the offender had been brought up. He described it as “the most fiercely Muslim part of Pakistan”, where the combination of strictly Islamic mores and patriarchal tribal values leads to the domination of “a stern, puritanical Muslim tribal culture.” This culture is particularly restrictive of women, who are controlled by men in all areas of their lives. In particular, their sexuality is controlled in such a way as to inhibit their socialising as teenagers with members of the opposite sex.

32 Promiscuity by a woman is completely unacceptable, and would bring such shame and humiliation upon her family that she would be punished by being disfigured or even killed by her father or brothers “to retrieve family honour.” Women are veiled in public. Failure to observe modesty of dress, even for Europeans, could be seen as provocative and lead to aggressive behaviour by men.

33 Professor Humphrey sketched briefly how men’s authority over women is reinforced by the legal system, including areas of the criminal law which make it “more difficult for women to get protection against domestic violence, rape and false accusations against them.” The Professor concluded:

In summary, poverty, Muslim tribal culture, the honour code, unequal legal rights and strict social separation of men and women give men enormous control over the lives of women. Where women transgress the honour code, they are seen as morally loose and available for men’s sexual gratification.

34 Professor Humphrey expanded upon that last observation in the addendum to his report. He had been asked to assume, in outline, the circumstances leading up to the offences against both TW and CH, and to assume that the offender had grown up in the culture which he had described and had recently come to this country, where he was living with younger brothers but without his parents.

35 Put shortly, the Professor said that such a gathering with unrelated teenage girls, unaccompanied by a male guardian, would have been inconceivable in the offender’s area of origin. He would seen them as “immoral or loose”, and would have interpreted their very presence as sexually provocative. He added that the proposition “that a girl in this situation could take control by asserting her rights – i.e., saying no – would be very difficult in a patriarchal tribal culture where women are treated as dependents and legal minors.” In the case of CH, he noted that she had had consensual sexual intercourse with MMK. Given the cultural requirement of chastity prior to marriage, he said that the offender’s knowledge of her intimacy with his brother “would have, at the very least, created enormous expectations that she might be also available to him.”

36 The Crown prosecutor’s objection to this evidence was based upon its generality. He accepted that the Professor was qualified to speak of the social mores of the relevant area of Pakistan but noted that he had never interviewed the offender and was unaware of his upbringing, and that the bare outline of the circumstances of the offences was inadequate to convey what had actually occurred. However, the offender gave evidence that the culture described in the Professor’s report was an accurate description of the culture in which he had grown up. The effect of his evidence was that he saw both victims as promiscuous and believed that they had no right to repel his sexual advances.

37 The Crown prosecutor’s criticisms of Professor Humphrey’s evidence are of substance, but I consider that they bear upon its weight rather than its admissibility. It is appropriate to receive the Professor’s evidence insofar as it is capable of elucidating the offender’s background and explaining how that background might have borne upon his state of mind at the relevant time. I should observe that, in the appeal against the sentences imposed by Sully J, reference was made on the offender’s behalf to the “very traditional views about women” in Pakistan, but any suggestion that those views might mitigate his criminality was firmly rejected: see the judgments of McClellan CJ at CL at [2] to [4] and Grove J at [56]. However, it appears that the cultural background of the offender had not been explored in evidence at the appeal and, in particular, the Court did not have the benefit of expert evidence such as that of Professor Humphrey.

38 I accept that there may be circumstances in which the cultural background of an offender, while not excusing criminal conduct, may be relevant to the severity of the punishment to be meted out to that offender. So much was recognised by Brennan J in Neal v The Queen (1982) 149 CLR 305 at 326. Mr Odgers referred to two cases involving Aboriginal culture and custom: Shannon (1991) 56 A Crim R 56, and Hales v Jamilmira (2003) 142 NTR 1. The argument that a cultural background such as that disclosed by the evidence in the present case might bear upon sentence for sexual assault is unpalatable, but it is worthy of measured consideration and cannot be peremptorily dismissed. However, the question is academic unless I accept the offender’s evidence that his behaviour was relevantly influenced by that background. It is necessary to consider the credibility of that evidence, as it is of his evidence of mental disorder.

39 Put shortly, his evidence was that he committed the offences because the voices commanded him to and also because, as a result of his cultural background, he did not believe that what he was doing was wrong. I must say immediately that I perceive some tension between those explanations, but I am prepared to put that to one side. For other reasons, I accept neither of them.

40 As to the claim of mental disorder, this was the subject of a ground of appeal against the sentences of Sully J, for the purpose of which the Court allowed fresh evidence. The reasons for rejecting it are to be found in the leading judgment of Grove J at [34] ff. However, I must determine the question on the evidence which is before me.

41 Dr Greenberg’s reports and his oral evidence convey that he was guarded about the history which the offender supplied to him. He did not diagnose a psychotic illness. He saw the pattern of paranoid thoughts described by the offender as more consistent with the distrust and suspicion of a paranoid personality, who had not lost touch with reality. He could explain the account of hearing voices only as the product of the offender’s own thoughts, rather than as “true auditory hallucinations.” On the history, he diagnosed an obsessive compulsive disorder. However, he acknowledged that any conclusion was dependent upon the veracity of the history furnished to him, and he could not rule out malingering.

42 A similar diagnosis of obsessive compulsive disorder was arrived at by Dr Baron after he interviewed the offender in February 2004. However, that was based upon a history significantly different from that which the offender furnished to Dr Greenberg. He said nothing at that stage about the command hallucinations he later described and, in particular, he did not then suggest that the sexual assaults dealt with by Sully J were influenced by his hearing voices. Nor did he raise any such issue in the sentence proceedings before Sully J. However, it must be understood that at that stage of the proceedings he was still unrepresented and continued to maintain his innocence of those crimes.

43 The Crown prosecutor also relied upon his response to certain standard questionnaires administered by the Police Service and the Department of Corrective Services upon his arrest and his being taken into prison custody. The effect of some answers he supplied in both documents was that he did not have any mental problems and had not been treated for anything of that nature. I would not place much weight on these documents. One might question how much care he might have exercised in responding to these documents in the circumstances in which he then found himself. Moreover, if he were then suffering from a mental illness for which he was not taking his medication, he might have had little insight into his condition.

44 As to the influence of his cultural background, the issue appears to have been raised for the first time in the sentence proceedings before me. In his interview with Dr Baron the offender had referred to the traditionally Islamic lifestyle of his village, where “traditional gender segregation was observed…”That, no doubt, was the source of the argument in the appeal against Sully J’s sentences to which I have referred and which was rejected by the Court. However, his cultural background was not presented as a discrete issue, supported by evidence, in the appeal. More importantly, the offender said nothing about this matter in any of the several consultations he had with Professor Greenberg last year.

45 Moreover, he was no stranger to this country. As I have said, prior to his arrival in June 2002 he had been here on eight occasions. One of those was an extended visit, during which he lived and worked here for the best part of a year. His evidence was that, when he was not working, he tended to remain at home with his siblings, and it does appear that the gatherings at the home which led to the sexual assaults had usually been arranged by his younger brother, MMK. Nevertheless, he must have had sufficient exposure to the Australian way of life to be aware that the place occupied by women in the traditional culture of his area of origin is far removed from our social norms. He can have been in no doubt that to treat those two young women in the manner he did was utterly unacceptable.

46 He is a witness of no credibility. The Crown prosecutor noted that, while he now admits his offence against TW and acknowledges his guilt of the offences of which he was convicted before Sully J, he had asserted his innocence in both trials. In the trial before Sully J he raised an alibi. In the trial before me he gave evidence that TW consented to intercourse with him and, indeed, was an enthusiastic participant in it. This, of itself, would not necessarily be conclusive. Some offenders who have protested their innocence before conviction later acknowledge their guilt and seek genuinely to come to terms with what they have done. That is not this case.

47 It is the offender’s behaviour leading up to the trial of the offences against TW, and during that trial, which is destructive of his credit. Included in the Crown’s material on sentence is a chronology of the proceedings generally, which it is not necessary to recite. Equally, it would be tedious to recount the course of the proceedings before Howie J concerning the offender’s fitness to stand trial, and the many applications by or on behalf of the offender and the incidents in which he was involved which delayed the start of the trial and impeded its progress. I expressed the view during the trial, and I maintain it now, that the whole of the offender’s behaviour was consciously designed to prevent the proceedings being brought to finality. He presents as a man who is prepared to manipulate the system in any way he can to avoid facing the consequences of his crimes.

48 That, I have no doubt, is how he has approached his case in these sentence proceedings. Having been found guilty of the offences against TW, and knowing that sentence is inevitable, he has set about fabricating the best case he can in mitigation. I reject his evidence that his offences were influenced by his having heard voices. He may have a psychiatric disorder of the kind envisaged by Professor Greenberg, but I do not accept that it had any relevant bearing upon his criminal behaviour.

49 Equally, I reject his evidence of the influence of his cultural background. I would not presume to pass judgment upon the traditional attitudes and norms described by Professor Humphrey, and I would not assume that all the members of a community within that culture would turn a blind eye to sexual assaults such as those perpetrated by this offender. However that may be, his behaviour demonstrates an attitude to sexuality which is exploitative, dominating and aggressive. Sadly, that is a phenomenon from which no community on this earth is immune. Whatever might be its source in the personal make-up of a particular sexual offender, it in no way mitigates that person’s culpability for the offence.

50 As I have said, in his evidence the offender acknowledged his guilt in respect of his own sexual assault upon TW (the subject of the third count). He apologised to both victims. I can but hope that his public acknowledgement of guilt provides some comfort to them. However, I do not accept that he is genuinely remorseful. In my view, that evidence also was designed to advance his case in mitigation of sentence. Having said that, he is entitled to recognition of the utilitarian benefit of his plea of guilty to the offence against CH. I should also make it clear that he bears no responsibility for the delay in finalising these sentence proceedings.

Sentence

51 The Crown prosecutor and Mr Odgers dealt in written submissions with the applicability of aggravating and mitigating factors under s21A of the Crimes (Sentencing Procedure) Act. The issue of aggravating features under that provision has been the subject of a number of decisions of the Court of Criminal Appeal in recent years, to which I find it unnecessary to refer. It is sufficient to say that the emotional harm to both of the young victims, disclosed by their victim impact statements, was substantial: subs (2)(g). I also find that the offence against CH was accompanied by the threatened use of violence, albeit implied: subs (2)(b).

52 However, I reject the Crown prosecutor’s submission that the offences against these two victims, viewed against the background of the later offences dealt with by Sully J, should be seen as part of a series of criminal acts committed against all the victims involved: subs (2)(m), and as part of a planned or organised criminal activity: subs (2)(n). While there are similarities in the circumstances leading to the offences with which I am dealing and those dealt with by Sully J, I am not satisfied that the three episodes of sexual assault involved were anything more than opportunistic. Other factors of aggravation advanced by the Crown prosecutor are not applicable in the light of prevailing authority.

53 All that said, the gravity of the offences for which I must pass sentence are apparent from my recitation of their facts. Such mitigating features under s21A(3) as are applicable will be apparent from these reasons, and need not be recited.

54 I accept that the offender was intoxicated at the time of the offences, although to what extent I cannot say. Of itself, however, that does not afford any significant mitigation of the seriousness of his crimes. As I have said, he is entitled to the utilitarian benefit of his plea of guilty to the offence against CH. That plea averted the necessity of a trial and spared her the experience of giving evidence. The plea was entered at a late stage, and Mr Odgers acknowledged that it entitled him to only a relatively modest reduction of sentence. He proposed a range of ten to fifteen percent. I shall allow ten percent.

55 He is entitled to the benefit of the absence of any significant criminal record at the time of these offences, even though that is a matter which Sully J also took into account in sentencing him. Given my findings about his credibility and lack of remorse expressed above, I am guarded about his prospects of rehabilitation. However, I am not prepared to find that there are none. He is still a young man, with the lion’s share of his life ahead of him. Inevitably, he must serve a substantial period in prison before he has any prospect of release. I must fashion an overall sentence which can foster his rehabilitation by providing the opportunity of a lengthy period of conditional liberty, subject to supervision and the sanction of parole.

56 He has been on protection as a result of an incident on 23 December 2003, which is recorded in Corrective Services documents tendered in the case of his brother, MAK, to which I shall turn shortly. As a result, he has been allowed only two hours exercise per day and has otherwise been confined to his cell. How long that situation must continue is not clear, but I accept that it will be the case in the indefinite future. That is a matter properly to be taken into account on sentence.

57 He is currently serving sentences imposed by Sully J aggregating a term of twenty-two years, with a non-parole period of sixteen and a half years, dating from 13 August 2002. He is not eligible for release on parole until 12 February 2019. The offences for which Sully J sentenced him are significantly more serious than those before me. He and his two brothers were dealt with for nine counts of aggravated sexual assault in company, an offence under s61JA of the Crimes Act which carries a maximum sentence of imprisonment for life. There were two young victims. At different stages this offender and MMK produced knives. Some of the sexual assaults were accompanied by what Sully J described as “very ugly threats of violence.” The gravity of these offences is sufficiently apparent from Grove J’s brief summary of them in his judgment in the Court of Criminal Appeal at [16] – [30].

58 The sentences I pass upon this offender must be partly cumulative upon Sully J’s sentences. Moreover, there must be some accumulation of the sentences on the four counts relating to TW, so as to mark their criminality and preserve the relativity between this offender’s culpability and that of MAK, who is to be sentenced for one count in relation to that victim. There must also be some further accumulation of the sentence for the offence against CH. All this must be done guided by the well established principle of totality, with an eye to the practical effect of the accumulation.

59 Because of the accumulation I propose, I find special circumstances warranting a departure from the usual statutory ratio in the non-parole periods I shall fix. The result will be a period of parole eligibility of six years. I do not believe that an effective non-parole period less than that which I propose would be sufficient to reflect the offender’s criminality. Because of the dates of the offences, I shall pass sentence in accordance with the procedure prior to the 2002 amendments to the Crimes (Sentencing Procedure) Act.

60 In relation to the offences against TW, the offender is sentenced on the first two counts to concurrent terms of imprisonment for eight years, to date from 13 August 2014. I decline to set a non-parole period in respect of those sentences because of the sentences I propose on the remaining counts. On the third count, he is sentenced to imprisonment for eight years, with a non-parole period of four years, to date from 13 August 2016. On the fourth count, he is sentenced to imprisonment for eight years, with a non-parole period of four years, to date from 13 August 2018.

61 In relation to the offence against CH, but for his plea of guilty I would have also imposed a sentence of imprisonment for eight years. A reduction of ten percent yields a sentence of a little over seven years, which I shall round off at seven years. For that offence, the offender is sentenced to imprisonment for seven years, with a non-parole period of three years, to date from 13 August 2021.

62 In the result, the sentences imposed by Sully J and myself amount to a total term of twenty-eight years, dating from 13 August 2002, with an effective non-parole period of twenty-two years. The offender will now be eligible for release on parole on 12 August 2024.

63 At the time of final submissions on sentence the offender was sharing a cell with his brother, MAK at the MRRC, Silverwater. Mr Odgers tendered a certificate by a psychiatric registrar with Justice Health, observing that it was in the interests of his mental well being that that arrangement should continue. I recommend that it should for as long as those having responsibility for his care consider it to be desirable.

MAK

64 The offender, MAK was on trial with MSK in respect of the offences against TW. In the course of the trial, on 31 May 2005, I directed that he be tried separately from MSK because of some behaviour on the part of the latter which was prejudicial to him. By that stage TW had completed her evidence, as had the two friends who had been with her on the night in question. The trial of MSK continued and the trial of the offender was adjourned. However, on 20 June 2005 he pleaded guilty to a single count under s61J of the Crimes Act, that is, sexual intercourse with TW without her consent, the circumstance of aggravation being that she was under the age of sixteen.

65 He stands for sentence for that offence, and asks that I take into account on a Form 1 a charge of indecent assault upon a sixteen year old girl, TA, on 20 January 2002. That is an offence under s61L of the Crimes Act, carrying a maximum sentence of imprisonment for five years.

Offence against TW

66 I have already recounted the circumstances in which TW came to be at the Ashfield home on the evening of 14 June 2002. However, for the purpose of sentencing this offender, it is necessary to recite the agreed facts touching upon his involvement. TW and her two friends had travelled to Sutherland, where they were picked up by the offender and MMK in the offender’s car. He drove to the Ashfield home, stopping on the way for the men to buy alcohol and soft drinks.

67 In the course of socialising in the lounge room at the home, the offender sat next to TW and put his hand between her thighs. Discomforted by this, she left the lounge room to go to the toilet, intending to sit next to one of her friends when she returned. However, when she came back to the lounge room she was met by the offender, who took her hand and led her to the bedroom.

68 There, they sat on the bed with the light off, talking. The offender then kissed TW, to which she responded for a short time before realising that his contact was going further than she wanted. She said as much to him and tried to get up to leave, but he pushed her back onto the bed. He touched her under her clothing, pulled down her underpants and inserted his finger into her vagina. Then, despite her protest that she did not want him to do what he was doing, he had penile/vaginal intercourse with her until he ejaculated. He left the room, and it was then that MSK entered it.

69 As I have already recorded, TW eventually left the bedroom and made her complaint to her friends, and the offender drove the three of them to a nearby railway station. The following morning, TW told members of her family what had happened and was interviewed by police. Biological testing of the underpants she had been wearing revealed an area of seminal staining with a DNA profile consistent with that of the offender.

70 Of course, TW’s victim impact statement relates as much to this offence as it does to those of MSK.

Offence against TA

71 As I have said, the matter on the Form 1 relating to TA occurred some months earlier, on 20 January 2002. TA’s older sister was acquainted with MMK, and on that day MMK had arranged to take out the sister in the evening. The sister asked TA to accompany her. The offender drove MMK to the young women’s residence in south-western Sydney. Also in the car was another of his brothers, MRK. They picked up the young women and the offender drove back to the Ashfield home. Again, they stopped on the way and MRK bought a bottle of vodka.

72 At the house the group sat in the lounge room. MRK poured vodka for everyone and encouraged TA to drink some, despite her saying that she did not want to. At one stage the brothers were discussing the type of girls to whom they were attracted, and the offender said to TA, “I like blonde Australian girls.” As he said this, he put his arm around her shoulder.

73 After a time, TA’s sister left the lounge room with MMK and went to another room. In an attempt to get away from the offender, TA got up from the lounge and went to the toilet. However, when she emerged from the toilet, the offender was standing there. He told her that he would show her the house. He took her to a bedroom and asked her to sit on the bed. She said she would like to go back to the lounge room, but he asked her to stay for “a couple of minutes.” She had “a bad feeling” about the situation, but thought that he might become angry with her if she did not do what he wanted.

74 She sat on the bed and the offender turned the light off. He sat next to her and tried to kiss her, but she said, “No, I have a boyfriend.” He told her to relax and massaged her shoulders. As he did this, he began to push her back so that she would be lying on the bed. She kept pulling herself back up and said, “No, can we just go back out into the lounge room? I have a boyfriend and I really don’t want to do this.”

75 He then pushed her down onto the bed and rolled onto her, so that she could not get up. He massaged her chest, and then moved his hand onto her top and inside her bra, rubbing her left breast. She began to cry and said, “I don’t want to do this. Can we please go back out to the lounge room?” The offender said, “Just a few minutes”, and moved so that he was sitting on top of her. He again tried to kiss her but she turned her head away. She was very upset and crying loudly. He said, “Be quiet, they’ll hear you.” She asked him to get off her and get her sister.

76 He rolled off her, but he then put his hand under her lower garments and touched her pubic area. She twisted to her side and pulled his hand away. He then left the room. Shortly afterwards, she told MMK and her sister what had happened.

Subjective case

77 The offender was aged between twenty-one and twenty-two when these offences were committed. He is now twenty-six. At the time of the offences he had no criminal record. Like MSK, the term of imprisonment imposed by Sully J which he is now serving relates to subsequent offences.

78 His counsel, Mr Hanley, tendered a pre-sentence report of 12 February 2004 and a psychological report of Ms Narci Sutton of 13 February 2004, both prepared for the sentence proceedings before Sully J. In addition, he tendered a psychological assessment of Ms Anita Duffy of 11 October 2005. The offender also gave evidence.

79 He is the second eldest of the family. He completed all but the last year of his secondary education before travelling to this country in 1998. He also had hoped to pursue tertiary education, studying engineering, but for him also this was not to be. He remained here, finding accommodation near the centre of Sydney and obtaining employment at a store in the same general area.

80 Over a period, several of his younger brothers arrived in Australia. He did a security course and obtained employment in that industry. In due course they moved to the house at Ashfield, where he was effectively the head of the household. Several of his brothers were still at school. He bore the responsibility of caring for them and providing for them materially. At the age of twenty he formed an intimate relationship with a young woman, which was subsisting at the time of his offences.

81 To the authors of the pre-sentence report and psychological report which were before Sully J, he presented a generally rosy picture of his background and of his circumstances prior to his arrest. While he described himself as a member of a “strict Islamic family”, he gave an account of a stable and loving upbringing and of satisfactory progression through his schooling. He said that, while he had had alcohol since coming to Australia, he had never abused it. He described his relationship with his girlfriend up to the time of his arrest as one which was mutually fulfilling, emotionally and sexually, and said they were to be married and she was to convert to Islam.

82 It is to be understood that at that stage he also was maintaining his innocence of the crimes of which he had been convicted before Sully J. The author of the psychological report, Ms Sutton, was unconvinced by his “seemingly idealised reporting of his background and relationships.” Psychological testing which she administered confirmed her clinical impression that the picture he was presenting was “overly positive.” In the conclusion of her report she recommended that he be eventually referred to the prison based program for sexual offenders known as the Custody Based Intensive Treatment program, or CUBIT. She noted, however, that he could not participate in that program as long as he denied the offences.

83 Ms Sutton’s misgivings about the history provided to her proved to be well founded. In his more recent interview with Ms Duffy, he painted a much bleaker picture of his circumstances, both in his home country and since his arrival in Australia. He described his father as strict, irascible and given to corporal punishment. He said that discipline at school had been harsh, and he had been bullied by fellow students. He described his village as lawless and threatening, with many people carrying firearms and shootings being by no means uncommon.

84 Significantly, he told Ms Duffy that he had been the victim of regular sexual assault over a period of about a year, when he was in his very early teens and the perpetrator was in his mid-twenties. The abuse involved anal penetration. The perpetrator paid him, and he never told anyone about it because he found it so “degrading.” It ended when his abuser left the area.

85 He said that, while he was relieved to remove himself from his village and to settle in Australia, life here was by no means free of difficulty. He was the victim of armed robbery on three occasions while he was working in the store to which I have referred. He was burdened by the responsibility of his younger brothers and felt unable to look after them properly. He developed an escalating drinking problem. He said that, while his relationship with his girlfriend was good at first, it was marred by his drinking. She also drank to excess, there were arguments, and he admitted having hit her on occasions. He also admitted that she had been present in the house when he committed his offences. On both of those occasions, he said, he was intoxicated.

86 He adhered to this account in evidence before me. He said that he had felt able to speak more freely to Ms Duffy in October 2005 than he had been to those who had interviewed him early in the previous year. He apologised to both victims, and admitted his guilt of the offences dealt with by Sully J. Ms Duffy also recommended that he undertake the CUBIT program, and he said that he was willing to do so.

87 The Crown prosecutor challenged aspects of this evidence in cross-examination, but he mounted no argument about it in final submissions. Nevertheless, I have considered carefully whether it should be seen as an opportunistic fabrication or exaggeration of his background and current attitudes, designed, like the evidence of MSK, to advance a case in mitigation of sentence. In so doing, I have had regard to his presentation as a witness. On balance, I accept the substance of his evidence, and I accept that he is now remorseful and is attempting to come to terms with his crimes.

Sentence

88 As to the offence against TW, the offender must bear his share of the responsibility for the substantial emotional harm disclosed in her victim impact statement. Again, I reject the Crown prosecutor’s submission that this offence, viewed with the offences dealt with by Sully J, should be seen as part of a series of criminal acts and part of a planned or organised criminal activity.

89 Otherwise, in his case also the gravity of the offences is apparent from a recitation of the facts. The seriousness of the offence against TA is not diminished by the fact that she has not supplied a victim impact statement. Nor is it diminished by the fact that it is being dealt with on a Form 1, although the principles relating to that procedure are well settled by authority. I accept that he also was intoxicated at the time of the offences but, again, that does not mitigate his culpability in any significant way.

90 He also is entitled to the benefit of a clear criminal record at the time of these offences. His plea of guilty to the offence against TW has some utilitarian value, given that there might have otherwise been a further trial in which she would have to have given evidence, and he is entitled to a reduction of sentence on account of that plea and his remorse. I would reduce the sentence otherwise appropriate by fifteen percent. As I have said, he has also expressed remorse for the offence against TA. I assess his prospects of rehabilitation as favourable.

91 He also has been on strict protection since 23 December 2003, following an assault upon him and his brother, MSK by other prisoners. Departmental documents concerning that incident were tendered in his case. I take that into account upon the basis that his protected status also is of indefinite duration. He gave evidence of the restrictions that status places upon his access to various prison activities, including educational courses and library services.

92 For the offences dealt with by Sully J he was sentenced to terms of imprisonment aggregating sixteen years, with a non-parole period of twelve years, from 1 August 2002. He is not eligible for parole until 31 July 2014. As is obvious from the effective sentence, Sully J saw his involvement in those offences as significantly less serious than that of MSK. Nevertheless, the criminality of his participation in those offences is considerably more serious than that of the offences for which I must sentence him. Again, the sentence I pass must be partly cumulative, taking into account the principle of totality.

93 In his case also, the accumulation of sentence amounts to a special circumstance warranting a departure from the usual proportion between the sentence and the non-parole period. The effect of the sentence which I pass will be a period of parole eligibility of five years. Again, I consider that an effective non-parole period less than I propose would not be sufficient to reflect his criminality. But for his plea of guilty and his remorse, I would have imposed a sentence of ten and a half years. A reduction of fifteen percent for those factors yields a term a little under nine years, which I shall round off at nine years.

94 For the offence against TW, and taking into account the offence against TA, the offender is sentenced to imprisonment for nine years, with a non-parole period of four years, to date from 1 August 2012. The effect of the sentences passed by Sully J and that which I have passed is an aggregate term of nineteen years, with a non-parole period of fourteen years, dating from 1 August 2002. He will now be eligible for release on parole on 31 July 2016.

MMK

95 The offender, MMK pleaded guilty to a charge of sexual intercourse with CH on 14 July 2002, she being then under the age of sixteen. This is an offence under s66C(1) of the Crimes Act, which then carried a maximum sentence of imprisonment for eight years. He also asks that I take into account on a Form 1 charges of indecent assault and common assault committed upon a fourteen year old girl, MSM on 24 November 2001. In this case the offence of indecent assault is that provided for by s61M(1) of the Crimes Act, carrying a maximum sentence of seven years imprisonment. By s61 of the Act, common assault carries a maximum sentence of two years.

Offence against CH

96 The offence involving CH is the offender’s act of consensual sexual intercourse with her to which I have already referred in dealing with MSK. As I have said, she was thirteen years old at the time. The offender himself was fifteen. As at the date of the offence, 14 July 2002, they had known each other for about eight months. They had been out together on a few occasions and she felt that she could trust him.

97 I referred earlier to another young lady from Fairfield who was with the group at the Ashfield house on that occasion. At one stage MAK and that young lady left the lounge room. The other young men were speaking about what the two of them were doing, and the offender said to CH, “They’re rooting.” About thirty minutes later the other young lady returned to the lounge room, and CH observed that she appeared to be fine. The offender asked CH if she wanted to go to a bedroom. She agreed, and they did so. There, they kissed and had penile/vaginal intercourse, to which she consented.

98 As they were getting dressed afterwards, MAK entered the room and told the offender that the other young lady wanted to be taken home. The offender asked CH if she wanted to go with them, but she said that she would stay until MAK returned. It was after that that the sexual assaults upon CH by MSK and RS occurred. It is not suggested that the offender bore any criminal responsibility for those offences.

99 I also referred earlier to the fact that CH was subsequently interviewed by police, when she described in detail what had occurred on the evening in question. The offender was one of those whom she identified in the power point computer identification presentation.

Offences against MSM

100 The offences on the Form 1, as I have said, were committed much earlier, on 24 November 2001. On this occasion also the offender was fifteen years old. That evening, MSM, then fourteen years old, and a young lady friend of hers met two of the offender’s brothers at Ashfield Railway Station. Both young women had known the offender and some of his brothers for about six months. They were driven to the Ashfield house, alcohol being purchased on the way.

101 At the house MSM began to drink an alcoholic beverage, when she received a call on her mobile phone. As a result of that call, she left the house and met some other friends at a location nearby. She returned to the home, apparently in the company of some of those friends. During the evening, she observed that the lady friend to whom I first referred was drinking and that the brothers were encouraging her to drink more.

102 At one stage, she and others at the house went into a bedroom. She lay on a bed, fully dressed. The offender got onto the bed and began to hug her. He tried to pull her on top of him. She asked him to stop, but he tried to kiss her on a number of occasions. She rolled away from him, whereupon he placed his hand under her top and squeezed her breast. This gave rise to the charge of indecent assault. She pushed him away and abused him verbally. He then smacked her on the bottom, before getting off the bed.

103 Later, MSM wanted to leave, but was concerned about a friend of hers (not identified in the statement of facts) remaining at the house. She expressed that concern to one of the offender’s brothers, who abused her. The offender said, “Look at the hassle you caused”. He then slapped her across the face, making her cry. This gave rise to the charge of common assault. Another person at the house intervened. As MSM and her companion left the house, the offender was heard to say, “If I ever see you dirty scrags you better not walk the streets of Ashfield again. Watch your backs.”

104 The incident in the bedroom had been videotaped by another person who was at the house. Police found that videotape in the course of a search of the house conducted in the investigation of the offences dealt with by Sully J.

Subjective case

105 The offender is now nineteen years old. At the time of the offences with which I am dealing, he had no criminal record. In his case also, the sentences imposed by Sully J which he is now serving relate to subsequent offences. Mr Haesler SC, for the offender, tendered a psychological report by Mr Gerard Webster of 24 February 2004, which had been prepared for the sentence proceedings before Sully J, and a statement of 18 February 2004 by Pastor Martin Parish, a chaplain with the Department of Juvenile Justice. I also have the benefit of a report by that Department of 28 October 2005, prepared by Ms Michelle McGee, a counsellor in the Department’s Sexual Offender Program.

106 What emerges from that material is that, while the offender’s family was well off and respected in their community in Pakistan, there was conflict within the home. The effect of his account also was that his father was a stern disciplinarian. He saw arguments between his father and his older brothers in which there was physical aggression, and on at least one of those occasions a gun was produced. He also reported lawlessness, including gunfire, in the streets of the village, and having witnessed a violent incident in which a number of people were shot. Despite all this, he progressed well at school in his home country.

107 He came to Australia with some of his siblings when he was only thirteen years old. For virtually the whole of the time from then until his arrest in August 2002, he was under the supervision of his brother, MAK, but without parental control. He attended school here, and had commenced study in year eleven at the time he was taken into custody. His school reports were favourable at first, but over time his behaviour and academic performance deteriorated. He acknowledged to Ms McGee that he engaged in truancy because of his lifestyle at the time. In the absence of his parents and appropriate guidance from his older brothers, he was drinking alcohol and associating with an undesirable peer group.

108 He was reported to have engaged in inappropriate sexual behaviour, in a variety of ways, while at school. Generally, he appears to have been sexually active with a number of girls around his age. About six months prior to his arrest he formed a more stable relationship with a young lady, which has endured. Nevertheless, he continued to have what Ms McGee described as “casual sexual encounters.”

109 Since being in custody at a Juvenile Justice centre, he appears to have attracted generally favourable reports from the professional staff. He had to be disciplined for having pornographic material in his possession and, on one occasion, engaging in sexually inappropriate behaviour with his girlfriend during a visit. Otherwise, however, he has pursued his education and undertaken several vocational training courses, earning a number of certificates of achievement which are also in evidence. He has engaged in sports. He has undertaken the study and practice of Islam, and has expressed a determination to abstain from alcohol. He has maintained contact with his parents and other members of his family and, despite everything, his girlfriend continues to support him.

110 In her report, Ms McGee summarised the position in this way:

[The offender] presents as a young person with a history of exposure to family conflict, violence, a lack of parental supervision, and a progression of behavioural problems since arriving in Australia. He has a reported history of engaging in sexually inappropriate behaviour towards peer-age females and appears to have had a somewhat casual approach to sex and relationships. He also has a history of alcohol use and negative peer associations.

111 She went on to observe that he might “benefit from education and intervention that assists his understanding of the influence of peers and environment on decision making and behaviour.” She noted that he had been a willing participant in her assessment, and she saw this as indicative of his amenability to treatment. She thought that he might benefit from inclusion in the Sexual Offender Program, “in order to develop insight into the social, cognitive, emotional and behavioural precursors to his offending.” Engagement in that program, she wrote, could reduce his potential to re-offend sexually.

Sentence

112 The offender is serving sentences imposed by Sully J aggregating imprisonment for twenty-two years, with a non-parole period of thirteen years, from 1 August 2002. He is not eligible for release on parole until 31 July 2015. It is clear from that aggregate term that Sully J saw his culpability in the offences with which he was dealing as akin to that of MSK.

113 It is important that the undoubted gravity of those offences should not be allowed to obscure a clear headed assessment of the seriousness of the offences with which I must deal. It is true that both victims were very young, but so was the offender himself. In all the circumstances as I have outlined them, the offences fall into the lower range of seriousness of crimes of their kind. There are no relevant aggravating factors under s21A(2) of the Crimes (Sentencing Procedure) Act. I reject the Crown prosecutor’s submission that I should find the factors in subs (2)(g), (l), (m) and (n). Those factors either do not emerge from the evidence or are not applicable in the light of prevailing authority.

114 This offender also is entitled to the benefit of a clear criminal record at the time of these offences. He is also entitled to leniency by reason of his background and what I assess to be his favourable prospects of rehabilitation. I must approach his sentencing guided by the well settled principles governing the sentence of a juvenile offender, requiring in most cases allowance for that offender’s immaturity and emphasis upon his or her rehabilitation. That approach is also enshrined in s6 of the Children (Criminal Proceedings) Act.

115 As Mr Haesler pointed out, if the offender had faced only these charges, they would most likely have been dealt with summarily in the Children’s Court and may well have been disposed of by a non-custodial order. That is not to say that it is never appropriate to deal with offences such as these according to law. So much emerges from the decision of the Court of Criminal Appeal in R v MSS [2005] NSWCCA 227, although there are significant differences between that case and this.

116 In what has been a difficult sentencing exercise generally, the sentence of this offender has required particularly careful consideration. In all the circumstances, I think that it is appropriate that he be dealt with according to law. Given the substantial sentence he is now undergoing, no purpose would be served by dealing with him otherwise. I have also concluded that his criminality should be marked by a short custodial sentence.

117 I have considered carefully whether that sentence should be accumulated, wholly or partly, upon the non-parole period which he is now serving. That was the Crown prosecutor’s submission. I have decided that it should not. As matters stand, he will remain in Juvenile Justice detention until he turns twenty-one in 2007, when he will be removed to an adult prison. He will then have no prospect of release until 2015, when he is twenty-nine. In all the circumstances, I think it appropriate that the sentence I pass should be concurrent with his present term, and should be served in a Juvenile Justice centre. I have regard to his plea of guilty, but I do not think it necessary to specify as a discount the measure of leniency it has earned him.

118 For the offences against CH, and taking into account the offences against MSM on the Form 1, the offender is sentenced to imprisonment for twelve months to date from today, 5 April 2006. I decline to specify a non-parole period because of the sentences which he is currently serving. I direct that he serve the whole of that sentence as a juvenile offender.

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