Regina v MSK Regina v MAK Regina v MRK Regina v MMK - [2004] NSWSC 319

No judgment structure available for this case.

CITATION: Regina v MSK Regina v MAK Regina v MRK Regina v MMK [2004] NSWSC 319 revised - 30/04/2004

HEARING DATE(S): 20/2/04; 27/2/04; 1/3/04; 12/3/04

JUDGMENT DATE:
22 April 2004

JUDGMENT OF: Sully J at 1

DECISION: See attached for sentences

LEGISLATION CITED: Criminal Procedure Act 1986 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999
Children (Criminal Proceedings) Act 1987 (NSW)

CASES CITED: Camilleri: unreported, NSWCCA 8/2/90
Twala: unreported, NSWCCA 4/11/94
Veen (No. 2) (1988) 164 CLR 465
Reg v WM [2004] NSWCCA 53
Briginshaw v Briginshaw (1938) 60 CLR 336
Glasby: unreported, 11/6/98
Baker: NSWCCA, unreported, 20/9/95
Previtera (1997) 94 A Crim R 76
Kable v Director of Public Prosecutions (NSW) [1996] 189 CLR 51

PARTIES :
Regina
MSK
Regina
MAK
Regina
MRK
Regina
MMK

FILE NUMBER(S): SC 70201/03; 70002/03; 70202/03; 70203/03

COUNSEL: M. Cunneen - Crown
In person - MSK
In person - MAK
D. Yehia - MRK
A. Haesler - MMK
M. McColm - RS

SOLICITORS: Office of Director of Public Prosecutions
In person - MSK
In person - MAK
Legal Aid of NSW - MRK
A.L. Wunderlich & Co. - MMK
Mark Klees & Assoc. - RS

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

22 April 2004

70201/03 – REGINA v MSK
70002/03 – REGINA v MAK
70202/03 – REGINA v MRK
70203/03 – REGINA v MMK

REMARKS ON SENTENCE

1 SULLY J:

Introduction

2 There will be, therefore, no publication of the name of any of the seven persons to whom reference has been made. The two victims will continue to be referred to as LS and HG. The five offenders will be referred to as MSK, MAK, MRK, MMK and RS.

3 The original intention of the Crown had been to bring all five offenders to trial jointly. This proposal was effectively frustrated by the enactment of section 294A of the Criminal Procedure Act 1986 (NSW), the practical effect of which made it necessary to have two separate trials: a joint trial of MRK, MMK and RS, each of whom was legally represented; and a separate joint trial of MSK and MAK, both of whom were self-represented.

4 On 15 September 2002 MRK, MMK and RS were arraigned upon an indictment containing 11 counts. Each count was charged against those three accused jointly. Counts 1 through 5 named LS as the victim. Counts 6 through 11 named HG as the victim. Each count, save for counts 5 and 11, charged a contravention of section 61JA of the Crimes Act 1900 (NSW). Such a contravention attracts upon conviction a statutory maximum penalty of imprisonment for the term of the offender’s natural life. Each of counts 5 and 11 charged a contravention of section 86(2) of the Crimes Act. Such a contravention attracts upon conviction a statutory maximum penalty of imprisonment for 20 years.

5 This trial continued until the afternoon of 13 October 2003 when the jury returned against each of MRK, MMK and RS a verdict of guilty on each of the section 61JA charges; and returned by direction of the Court verdicts of not guilty on the section 86 charges.

6 These three offenders were remanded thereupon and in custody to a date to be fixed.

7 On 23 October 2003 MSK and MAK were arraigned upon an indictment containing 9 counts. Each count was charged against MSK and MAK jointly. Counts 1 through 4 named LS as the victim. Counts 5 through 9 named HG as the victim. Each count charged a contravention of section 61JA of the Crimes Act.

8 This trial continued until the afternoon of 27 November 2003 when the jury returned against each of MSK and MAK a verdict of guilty on each of the 9 charges.

9 These two offenders were remanded thereupon and in custody to a date to be fixed.

10 Proceedings on sentence commenced on 20 February 2004. All five of the offenders were then and thereafter present together before the Court on each day of those proceedings. The proceedings continued on 27 February 2004 and 1 March 2004, and concluded on 12 March 2004. In each of the five cases the Court reserved its decision.

11 On Thursday of last week, 15 April 2004, RS died in tragic circumstances. By the time that reliable information to that effect had been received by the Court, the substance of the present remarks on sentence had been drafted. The death of RS entailed, obviously, a need for some re-casting of that draft of these remarks on sentence. To that end I have removed from the original draft all of the material that deals in a particular manner with the individual case of RS. That material will be separately engrossed; will be placed in a sealed envelope; that sealed envelope will be marked for identification MFI 3(MSK;MAK;MRK;MMK and RS); and the envelope thus marked, together with its contents, will remain with the Court file for any necessary future reference. No access is to be granted to the contents of the envelope without a prior order of a Judge of this Court or of some higher Court.

A Summary of the Facts

12 It is emphasised at once that what follows is not an exhaustive survey and analysis of the evidence at the two trials. It is, rather, an overview of the background to, and the incidents of, the offences for which sentences are now to be passed.

13 On Saturday 13 July 2002 the two victims, LS and HG, came into the city. As LS put it in her evidence in the second trial:

“We just walked around and had dinner, looked around and stuff.”

14 At the time LS and HG were teen-aged school students at the same school. They were close personal friends. LS was then aged about 17 years; and HG was then aged about 16 years.

15 At about 2.00 a.m. on the Sunday morning the two girls found themselves near Town Hall Station. They had missed their last train home, and they had, it would seem, no way of getting home. I observe parenthetically that the evidence does not explain why either or both of the girls could not have made a telephone call to home in order to get help.

16 Be that as it may, the two girls were standing at some traffic lights waiting to cross the road. While they were waiting, a black Nissan Skyline motor vehicle stopped at the traffic lights. In it were three young men: MRK, MMK and MAK. The two girls got into conversation outside the motor vehicle with MMK and MRK. They then entered the motor vehicle which drove around the corner and parked, and the five occupants had a conversation for about 15 minutes. The progress of events was described by LS, in her evidence at the second trial, as follows:

“We got in the car and we went around the corner and spoke for probably another 15 minutes or so, spoke about, like, where the boys worked, what they did, that type of thing. They asked us to come back and stay the night and seeing we missed our last train home, we had nowhere to go, no way of getting home. We decided to stay the night there.”

17 And so the vehicle and its occupants set off. There was a stop “somewhere in the city” in order to pick up MSK; and a subsequent stop at a McDonalds outlet for the purchase of food. Thereafter the motor vehicle and its six occupants proceeded to the K family home at Ashfield.

18 At those premises the six people went into the lounge room. They talked, listened to music, and looked at videos and DVDs. During that time MAK, a home-video devotee, made a short video of the group. The video became Exhibit C5 in the first trial and Exhibit C7 in the second trial. The video shows HG and MRK sitting together on the floor of the room and petting each other. LS is shown seated with MMK on the floor, at close quarters, and shielding her face from the camera because, as she explained in her evidence, she did not wish to be filmed. The video shows MSK also present in the room.

19 The significance of this video lies in the fact that it shows the lounge room to have been a small room, much of the space of which was taken up by furniture, so that the six people in the room were necessarily so close together that LS and HG had ample opportunity to become familiar with the appearance of the four K brothers.

20 At about 5 a.m. the six people in the lounge room went to sleep. LS and HG slept on the floor of the lounge room with MRK between them. There was no suggestion of any sexual activity between or among them. The three other K brothers slept in their bedrooms.

21 At about 10 a.m. on the Sunday morning LS and HG awoke. MRK drove them to Ashfield Railway Station, whence LS and HG went home by train. As they parted from MRK, he put his mobile telephone number into LS’s mobile phone.

22 Two weeks later, on Saturday 27 July 2002, LS received on her mobile phone a call from someone calling himself “Mohammad”. The call was received at about 5.30 p.m. LS described in her evidence at the second trial, and as follows, what then happened:

CROWN PROSECUTOR: Q. Moving to 27 July, a Saturday last year in 2002, did you receive any phone calls that evening?

A . “Yes at approximately 5.30 my mobile rung and the name …(of MRK)… came up. As I answered it, he told me it was Mohammad on the phone. He asked me what I was doing that night and whether I wanted to meet up. I told him that I was going to a party with my friend ……(HG)…… and to call me later, may be if the party wasn’t very good we would meet up afterwards so he hung up and that is what happened.

……………….. (W)e went to the party and he called me a number of times, Mohammad did at the party. He kept on wanting us to meet up with him. He asked us to come to the city and I told him no, if he wanted to see me he is going to come to where I was. So, at about between 9 and 10 we arranged to meet at East Hills train station and it was arranged like that.” [T 27.10.03 at 169(21) – (39) ]

23 According to LS she told “Mohammad” not to expect anything from her, because she had a steady boy-friend.

24 Eventually, and shortly before mid-night, LS and HG made their way to East Hills Railway Station where they were to be collected by “Mohammad”. While they were waiting for him, they were seen by two police officers who were patrolling in the area. The police officers approached the two girls; asked whether they were alright; and offered them a lift home. The girls declined that offer, telling the police, falsely, that they were waiting to catch a train home to Revesby.

25 Presently, the Nissan Skyline appeared on the scene. In it were MMK, MAK, MSK and RS. The girls got into the vehicle, and it proceeded, with a stop at a McDonalds outlet in order to buy food, to the Ashfield premises.

26 At those premises the group again went to the lounge room. MRK was already there. For an hour or two things went much as they had done a fortnight earlier; but on this occasion the girls were importuned to drink bourbon-and-cokes, which they resisted doing.

27 And then, quite suddenly, things began to go very badly wrong. LS, in her evidence at the first trial, gave this description:

“Q: Did something happen on the lounge?

A: As I was sitting down …(MMK)… was leaning on me and he said to me, ‘[L], I’m horny’. I was sort of surprised. I said, ‘Well, what do you want me to do about it? Why are you telling me for?’ He said, ‘[L]……, I’m horny, come to the room with me’. I told him ‘no’ and we continued sort of arguing, disputing it for a while and then he grabbed my wrists and my hair and pulled me right off the lounge and pulled me up off onto the ground. I was shocked. I didn’t know what to do. As I tried to stand up, …. [MSK] ….started yelling saying ‘What are you doing? What do you think you’re doing?’. I thought he was yelling out at …(MMK)…, telling him ‘What do you think you’re doing?’. And he started to approach me and I realised that he was yelling at me and he then open-hand, he slapped me really hard across the face.” [T 16.9.03 at 101 (46) – 102 (2) ]

28 Thereafter things moved quickly. LS tried to escape, but could not. She was forced into a bed-room. She there saw MRK with whom she pleaded for help. He told her that he was new to the group and that he could not help. He left her alone in the bed-room; and there she was thereafter subjected to a number of rapes, some of which were accompanied by very ugly threats of violence.

29 When all of these events concerning LS began to unfold, HG was sitting with MRK. As the first episodes of violence towards LS broke out, HG tried to get up from where she was seated. MRK held her back, telling her that MSK “hits girls”, and that she should therefore “do what he … (MSK) … says”. MSK told MRK to collect HG’s things and to get her into a nearby bed-room. MRK did so. Inside that room MRK took from HG a mobile phone which she had tried to use, telling her that he would return it to her later. MRK then left the room. HG tried to find some means of escape but could not do so. Thereafter she, too, was subjected to a number of rapes, some of which were accompanied by very ugly threats of violence. She was told by MMK at one point that LS was dead, having been stabbed when she had pulled out a knife; and that if HG did not “shut up” then the same thing would happen to her.

30 At the conclusion of the two simultaneous series of rapes of LS and HG they were driven by their assailants to Campsie; were dumped there; and were warned not to tell anybody about what had happened.

31 After the departure of the assailants, LS had, fortunately, the presence of mind to make on her mobile telephone a triple O distress call. This brought police and ambulance assistance. The girls received prompt medical and other appropriate attention; and made prompt complaint of what had happened to them.

32 On 29 July 2002 a search warrant was executed at the Ashfield premises. Various items corroborative of the complaints were seized.

33 On 1 August 2002 MAK, MMK and MRK were arrested. On 13 August 2002 MSK was arrested in Melbourne and extradited to New South Wales. On 27 August 2002 RS was arrested.

34 The two simultaneous sequences of rapes and their salient features are tabulated below. A reference to “the first indictment” is a reference to the indictment upon which MMK, MRK and RS were jointly tried. A reference to “the second indictment” is a reference to the indictment upon which MSK and MAK were later and separately tried jointly.

· Count 1 in both the first indictment and the second indictment:

Assailant

Victim

Act: Penile/vaginal intercourse

Weapon:

Condom.

· Count 2 in both the first indictment and the second indictment:

“doggy style”

Same condom.

· Count 3 in both the first indictment and the second indictment:

This followed immediately after the completion of the act charged in Count 2. The victim on top of the assailant, otherwise details as for Count 1.

· Count 4:

Assailant

“a few minutes – probably less than a minute”

No condom

· Count 6 in the first indictment; Count 5 in the second indictment:

Assailant:

Victim:

Act:

Weapon:

· Count 7 in the first indictment; Count 6 in the second indictment:

Followed immediately after the completion of the act charged, respectively, in Count 6 of the first indictment and Count 5 of the second indictment.

Victim:

Act:

Weapon:

“….. like a diving knife ….. thick blade ….. jagged edges …… tip really sharp …… handle had indents for your fingers”.

Condom.

· Count 8 in the first indictment and Count 7 in the second indictment: followed immediately after the act charged, respectively, in the immediately preceding count.

Act:

No condom.

· Count 9 in the first indictment, Count 8 in the second indictment: followed very shortly after the completion of the act charged, respectively, in the immediately preceding counts.

Assailant

Victim:

Act:

No condom

· Count 10 in the first indictment and Count 9 in the second indictment: followed almost immediately after the act charged in the immediately preceding count.

Assailant:

Act:

35 It is appropriate to conclude this section of the remarks on sentence by noting the salient features of the defence cases at trial. MRK did not dispute that he, his three brothers, and RS had been at the Ashfield premises on the evening of 27 July. Neither did he dispute having restrained HG when things became ugly, saying to her that MSK would hit her if she got up from the floor where she was then seated with him. He strenuously denied, however, having been aware of any intended sexual assault by anybody of either LS or HG. His case was that he had been so intoxicated as to have been nauseous and dizzy, and to have been generally both unaware of and unconcerned about what was going on around him. He said that he had tried to help HG by steering her into his bed-room where he thought and intended that she would be out of any harm’s way. He admitted to having come across LS in another near-by bed-room; but he denied that she had been in any way distressed, or that she had appealed to him for help. He agreed that he had travelled in the car in which LS and HG had been transported to Campsie; but he denied having made, or having heard anybody else make, any threat to either of LS and HG. He was adamant that he knew of no sexual assault, whether before or after it occurred, or during its occurrence.

36 RS took the most uncomplicated line of defence of all the accused. He took, through his counsel, a very low forensic profile throughout the first trial. His forensic stance was to put the Crown to proof of its case against him; intervening very sparingly by cross-examination; and neither giving nor calling evidence. His forensic attacks upon the Crown case concentrated upon the areas of visual identification and of DNA identification.

37 MMK in the first trial, and both MSK and MAK in the second trial, all concentrated their forensic attacks upon the Crown case upon the issue of identification; and all three of them set up alibi defences. In each case the alibi was, essentially, that the particular accused had not been at the Ashfield premises at any material time, but had been, rather, at the nearby home of yet another brother, MTK. MMK gave evidence to that effect. MSK and MAK called evidence, but gave personally no evidence, in support of the alibi defence. MSK and MAK called, as well, family evidence that was designed to establish that LS and HG had not been at the Ashfield premises at the times of the alleged assaults; and that no assaults of any kind had been perpetrated upon them by anybody in any part of the Ashfield premises at any allegedly material time. The brother MTK was not called in any defence case.

38 It is plain from the verdicts returned by the jury in each case that the alibi defences were comprehensively rejected; and that the identification evidence, whether visual or scientific, was accepted. Upon both scores I am myself similarly satisfied beyond reasonable doubt.

39 It is only fair to both of LS and HG to add, in connection with this canvass of the facts, that none of the offenders sought at any time to make a case of consensual sexual intercourse, or of sexual intercourse reasonably believed by him to have been consensual.

Objective Criminality

40 It is convenient to begin by quoting as follows from the decision of the Court of Criminal Appeal in Camilleri: unreported, NSWCCA, 8 February 1990:

“In seeking to determine in any case the sentence appropriate to a particular crime, it is always of importance to have regard to the gravity of the offence viewed objectively. Unless that is done, the other factors requiring consideration in order to arrive at the proper sentence cannot be given their rightful place. A sentence imposed must be commensurate with the seriousness of the crime in the sense that it should, having regard to all the proved circumstances, accord with the general moral sense of the community.

It should also serve as a sufficient deterrent both to the offender and to others. The purpose of that deterrence is to prevent the commission of such offences and whilst justice and humanity require that the previous character and conduct and the probable future life and conduct of the individual offender should be given the most careful consideration, those are factors which are necessarily subsidiary to the main consideration which determines the appropriate amount of punishment, that is the protection of the public. The fundamental purpose of punishment is the protection of society.

Unless those basic principles of sentencing are adhered to errors will occur. ……………. “

41 It is, I apprehend, in the nature of things to consider whether the rapes which were committed upon LS and HG are properly to be regarded as being, in objective terms, worst case examples of that particular kind. The relevant principles are simple and well established:

Twala

42 If a particular criminal act may be fairly categorised in conformity with the foregoing principles as a worst case example of its kind, then it is no answer to so categorising that crime in fact that it is: “….. possible to envisage a worst case; ingenuity can always conjure up a case of greater heinousness”. Veen (No. 2) (1988) 164 CLR 465 per Mason CJ, Brennan, Dawson and Toohey JJ at 478.

43 The rapes committed upon both LS and HG are, in my opinion, one and all clearly within the worst case category of that crime.

44 The two victims were teen-aged school girls. Having seen and heard them in two trials, I think that LS was plainly the more mature and somewhat more sophisticated for her age than was HG; but both girls were not as capable of taking care of themselves as they obviously thought they were. From the moment they got into the motor vehicle en route to Ashfield they were appallingly at risk that something untoward would happen to them; and they were in every practical sense utterly defenceless should that risk materialise in fact.

45 Both girls had gone to the Ashfield premises two weeks earlier. The circumstances then had been, in truth, just as risky; but as good luck had it, nothing went badly awry in fact. There could be no reasonable doubting, in my opinion, that both girls took it for granted that they would be as safe on the 27th as they had been in fact on the 13th. Neither could there be, in my opinion, any reasonable doubting that the offenders well understood that these two school girls were likely to be acting upon precisely such an assumption.

46 All of the foregoing circumstances seem to me to be precisely, and to recapitulate Twala, “features which are of very great heinousness”.

47 I can see, again recapitulating Twala, no “facts mitigating the seriousness of the crime, as distinct from subjective features mitigating the penalty”. There is, however, one matter that calls for comment in that connection; and, albeit that there are well established risks run by any Judge who raises the matter, I propose to raise it plainly and frankly.

48 There is room for a reasonable view that LS and HG behaved with breath-taking imprudence both on 13 July and on 27 July. Such behaviour is, however, and whether one approves of it or not, a fact of life in our society. That fact requires in its turn that all relevant social institutions, the Courts not least among them, make it crystal clear that any girl or woman who associates with any boy or man in circumstances which put her at risk of sexual assault, does not become thereby nothing more than an available sex object. In our society, to force a woman, any woman, to have sexual intercourse is, always and everywhere, at once a base act and a major crime. It is not, ever or anywhere, a defence that the woman was flighty, flirtatious or simply foolish.

49 That latter comment is especially to the point with boys and men from foreign ethnic cultures. The status of women in foreign countries is, in the end, a matter for the law and culture of those countries. The status of women in Australia is a matter for the law and culture of Australia. Neither the law nor the culture of Australia recognises multiculturalism, however that phenomenon might be defined, as providing in any way or to anybody a convenient justification either for rape or for any other form of sexual abuse.

50 All of those things said, it needs to be said also that even to categorise a section 61JA offence as a worst case example of that offence does not justify a self-righteous rush to the maximum penalty of imprisonment for the term of the offender’s natural life. What is a just penalty, even in such a case, calls for a careful consideration of relevant subjective matters and of certain additional and more general matters.

51 At the hearing on 27 February 2004 I invited a submission from the learned Crown Prosecutor concerning the comparative objective culpability of the five offenders. The learned Crown Prosecutor submitted that, in descending order of individual objective culpability, the offenders should be ranked: first, MSK; secondly, MMK; thirdly, MAK and RS on the basis that “there is probably little to distinguish between (them)”; fourthly, MRK. The learned Crown Prosecutor explained her submission thus:

“The overriding reasoning for my submission in relation to relative culpability is the number of offences personally committed by each of the prisoners, and in the case of RS there was only one.”

52 The learned Crown Prosecutor pointed out, further and correctly, that MAK, also, had himself actually committed only one of the offences; and that knives had been used by MSK and MMK, but not by MAK or RS, in respect of the offences actually perpetrated respectively by each of them.

53 I am satisfied beyond reasonable doubt that the foregoing ranking of the prisoners is a fair reflection of the totality of the available evidence; and I propose to deal with the offenders upon that basis. (I note parenthetically that at T 126(33) for 27.2.04 the recorded reference to MRK is wrong and should be a recorded reference to MAK.)

Subjective Considerations Relevant to Sentence

· MSK

54 MSK was born on 7 October 1978. He was aged therefore 23 years and some 9 months at the date of the offences; and he is now aged 25 years and some 6 months. He has been in continuous custody since his arrest in Melbourne on 13 August 2002.

55 MSK is the eldest of eight children, seven of whom are male, and three of whom are co-offenders with him. He married in Pakistan, his country of origin, in 1998. There is one child of that marriage, a boy born on 28 April 1999 and now aged, therefore, almost 5 years. The boy has a medical problem. It is described in two medical reports which are Exhibit P1(MSK) on sentence. It is not, I think, particularly serious; but it must be distressing and disagreeable for both the boy himself and for his parents.

56 MSK originally came to Australia from Pakistan at the insistence of his father who perceived that his children would have greatly improved prospects, personal and vocational, if they were to live in Australia rather than in Pakistan. The same thing happened with MAK, MRK and MMK.

57 MSK was employed for some eight or nine months during 2000, working as a security guard. He seems to have had no other employment in Australia.

58 In March 2001 MSK was convicted in a Local Court of three related offences of dishonesty. MSK is, therefore, not a first offender; but I regard those prior matters as having no other bearing upon the present sentencing.

59 Exhibit C3(MSK) on sentence is a collection of three reports about MSK’s psychological profile. I have read them all; but it is the carefully detailed report of Dr. John Baron as principal reporter that I have found to be the most useful of the three. Dr. Baron has worked since September 1998 as a Clinical Psychologist in the Sex Offenders Programmes that are maintained by the NSW Department of Corrective Services.

60 This report was prepared as an aid to the assessment, which this Court must make as part of the sentencing process, of any risk that MSK will commit further serious sexual offences; and of his prospects of rehabilitation.

61 The report offers a careful and thorough analysis of the observations made of MSK and of the clinical testing that was carried out upon him. The results are summarised as follows:

“Psychological assessment suggests that MSK is experiencing severe symptoms of anxiety and depression – consistent with his current situation. However, there is no clear evidence of a psychotic disorder or diagnosable personality pathology. Although the possibility of dissimulation has to be considered, his account of his symptoms was credible; at this stage it is not possible to come to a firm conclusion about this matter. His self-reported symptoms of compulsions should be further investigated after sentencing, with a view to thorough clinical assessment and treatment. However, if the presence of an Obsessive-Compulsive Disorder were established, it is not clear that such a disorder would have any relevance as a mitigating factor in the offences; nor did MSK appear to be attempting to draw any such relevance. Furthermore, in his account of his symptoms there was no suggestion that he had compulsive and uncontrollable urges to sexually assault females. Some descriptions of his behaviour suggest that he has personality traits of narcissism, grandiosity and callousness, and there are indications of a disordered sexuality.

An accurate knowledge of MSK’s socio-cultural background and family dynamics (especially in terms of the relationships between the four offending brothers) would allow for a better understanding of the offences. In this context, it would be useful to know about any prevalent cultural assumptions and practices relating to females that they may have absorbed during their formative years – and in particular, cultural assumptions relating to young females who are perceived to be sexually available. The image of village life as portrayed by MSK seems over-idealised and implausible, especially given that the village is only a short distance from Peshawar. On MSK’s own account there are many serious socio-cultural problems in Peshawar and in regions of Pakistan close to the Afghanistan border.”

62 A further and separate section of the report deals with the discussions held with MSK about the offences for which he is now to be sentenced; and about MSK’s attitude towards his responsibility for and in connection with the offences.

63 This section of the report is overshadowed by a consideration that is common to each of the cases of MSK, MMK, MAK and MRK: that is to say, the consideration that each of those four offenders maintains that he is, simply and comprehensively, innocent of any sexual abuse of LS or of HG.

64 The report details a version of relevant events given by MSK to Dr. Baron. Of this version Dr. Baron remarks that MSK “offered minute and complex details to substantiate his version of events, but his presentation was at times almost incoherent, lacking in logical connection, and increasingly bizarre and contorted. At this stage he became very agitated, speaking in a raised voice”.

65 Dr. Baron concludes:

“In sum: MSK is in total denial about the offences and accepts no responsibility for them; as a result, he expresses no remorse or empathy for the victims. His rationalisations, though often incoherent and bordering on bizarre, did not appear to be psychotic delusions as such, but rather severe and pervasive cognitive disorders. At this stage of proceedings, especially given that he is intending to appeal his conviction, no firm conclusion can be drawn about the nature and function of MSK’s denial. Assuming that he is guilty as convicted, his denial may be a legal strategy; an attempt to preserve self-concept and a desire to avoid shame; defensive self-deception and inability to admit wrongdoing; blatant lying; or some combination of these.”

66 A concluding and separate section of the report attempts some precise assessment of future probabilities as to both risk and rehabilitation. The method of assessment involves locating MSK in a so-called “risk category”, and by then adding to the relevant facts and circumstances so-called “dynamic risk factors”. The former category is concerned with “historical (‘static’ and unchangeable) factors regarding the offender and his pattern of offending”. The latter category is concerned with “the offender’s current psychological state and life circumstances”.

67 Within the latter category Dr. Baron identifies a number of issues which he regards as being “of particular concern”:

“The following issues, associated with MSK’s level of personal risk, are of particular concern:

· His persecutory cognitive distortions about organized and co-ordinated anti-Muslim conspiracies, which serve to protect him from accepting personal responsibility for the offences

· His capacity to engage in other self-rescuing rationalisations that lack logical coherence or plausibility

· Personality traits such as grandiosity, narcissism, and lack of empathy for the victims

· Dysfunctional aspects of his sexuality – including aggressive and sadistic tendencies

· His emotional volatility and aggressiveness, as instanced in the details of the offences

· The distorted family dynamics and cultural dislocation that appear to underlie the offences”

68 Bringing together his clinical findings in both categories, Dr. Baron expresses these conclusions:

Level of Risk:

Low

Amenability for Rehabilitation:

69 The foregoing professional assessments of MSK are, obviously, not easily translated into a just and practical sentencing result. The achieving of such a result is not made any easier by my own observations of MSK, whom I have observed at close quarters not only throughout his trial itself, but also throughout the extensive pre-trial proceedings.

70 All of the foregoing observations are not made in any sense disrespectfully of MSK. They are made, rather, because they strengthen my acceptance of Dr. Baron’s assessments, and because they further point up the nature of the practical problems which the Court will have to resolve when it comes in due course to balance the objective and the subjective aspects of MSK’s case, and then to translate that balance into a just sentence according to law.

· MMK

71 MMK is the youngest of the five offenders. He was born on 18 July 1986. He was aged therefore just 16 years as at 27 July 2002; and he is now aged 17 years and some 9 months. He has been in custody since his arrest on 1 August 2002. He has no criminal antecedents. He is unmarried. He has no dependents.

72 MMK, in common with his brothers and as previously noted, maintains that he is not guilty of any wrong-doing towards LS or HG. It is, however, the inescapable fact that he must now be dealt with upon the basis that he committed a series of very cruel rapes upon HG; that he abused LS with marked violence during what proved to be the opening phase of the gross assaults committed both upon LS and upon HG; that he was in constant contact with LS before she actually agreed to go to the Ashfield premises; and that he sought to shelter behind an alibi which the jury rejected, and which I myself am persuaded beyond reasonable doubt was false.

73 In such a context it makes no sense to me to treat MMK as though he was, in July 2002, a child in the sense in which a reasonably informed and fair minded member of the public would normally use that description. That is the more so in the light of the considerable body of psychological evidence which has been placed before the Court; and none of which points to any underlying psychosexual abnormality that might explain, or perhaps mitigate according to proper principle, the way in which MMK behaved on the relevant occasion.

74 The most conveniently expressed overview of MMK’s psychological profile is the following summary which is taken from a specialised report from officers of the Sexual Offenders Programme of the Department of Juvenile Justice: see Exhibit C1 (MMK) on sentence:

“(MMK) presents as a young person with a history of exposure to family conflict, violence, and a lack of parental supervision after emigrating from Pakistan to Australia at the age of approximately 13 years. He has a reported history of engaging in sexually inappropriate behaviour towards peer-age females and appears to have a casual attitude towards sex and relationships. He also has a history of alcohol use and negative peer associations.

During this assessment he presented with adequate interpersonal and coping skills, though this appears to vary according to his environment. He appears to do well in a structured environment with supervision and is capable of maintaining positive, respectful behaviour given the motivation. However, this assessment revealed that he also has a history of instability in his personal relationships, both sexual and non-sexual.

Information obtained from third parties was at times conflicting with the information provided by (MMK). He appeared to think carefully about some answers to questions during the interviews and made attempts to present himself in the best possible light. Although this would not be considered a concern given the context of the assessment, it is consistent with reports of (MMK’s) past behaviour at school.

It is noted that throughout the assessment (MMK) appeared willing and able to engage in the assessment process. His amenability to treatment is indicated by his participation in this assessment and his past and current contact with a counsellor in Kariong JJC. A review of the static and dynamic risk factors outlined above indicates that (MMK) may benefit from the inclusion in a Sexual Offender Programme in order to develop insight into the cognitive, emotional, and behavioural precursors to his offending. However, (MMK) seemed to express little shame and guilt over his offending behaviour and maintained the position that he was not involved in the events. Although he may comply with directions to participate in intervention around sexually inappropriate behaviour, his motivation would be questionable at this stage. However, engagement in a sexual-offence-specific programme may be of benefit in reducing the potential of (MMK) sexually re-offending.”

75 In accepting that assessment, as I do, I have not overlooked the complementary opinions expressed by Mr. Gerard Webster, a highly qualified specialist in psychological counselling. His evidence, too, I accept. Mr. Webster’s report is Exhibit P1(MMK) on sentence, and like Exhibit C1 (MMK) it is lengthy, running to some 18 pages. Mr. Webster’s conclusions are:

“(MMK) has proved to be a very unusual case to assess. His background of child abuse and exposure to crime and violence is unusual compared with his Australian peers. His day-to-day behaviour is atypical of sexual offenders as a group, and the aggravating aspects of his sexual offences (being in company of brothers) is also very rare according to my knowledge of the literature. At best, his profile is most like that of the non-anxious over-controlled offender. Given the lack of data on this type of offender, it is very difficult to establish a level of risk of recidivism. Professionals are not yet in a position to compare him to a cohort of similar offenders whose recidivism rates are known. What is likely is that his vulnerability to sexually abuse was exacerbated by the consumption of alcohol.

In view of the added uncertainty of this case, I would recommend that (MMK) be given every opportunity to make use of sexual offender programmes in the custodial setting and later in the community. Intensive psychotherapy would assist him in addressing any unresolved unconscious issues that currently make him vulnerable to aggress against others, and a comprehensive sexual offender specific treatment programme would allow him to expand upon the gains he has made with the assistance of professionals whilst in custody.

I would also consider it prudent to maximise the opportunity for the authorities to supervise (MMK’s) behaviour upon his release.”

76 There are several relevant points to be made from the contents of the two assessments.

77 First, MMK’s background, insofar as it is given as one of “child abuse and exposure to crime and violence”, to quote Mr. Webster, is asserted by MMK himself and by other members of his family; but does not seem to be supported by reliable independent evidence from outside the family. In saying that, I am not implying that I simply reject the evidence. What I am saying is that I take a guarded view of the evidence.

78 Secondly, part of MMK’s social history in Australia is a history of inappropriate sexual behaviour and of unhealthy sexual attitudes. This is, to say the least, troubling when MMK’s future prospects are being assessed.

79 Thirdly, MMK seems to be, in his own way, as much a study in contrasts as MSK. He seems to be capable of studying effectively; of taking opportunities for self-improvement; of getting and holding, albeit with some behavioural ups and downs, lawful and gainful employment; and of conducting himself acceptably in his dealings with others. These aspects of MMK’s make-up stand in stark and disturbing contrast to the ugliness of his behaviour towards both LS and HG on the relevant occasion. It could not be held fairly, even so, that he has no prospects of rehabilitation.

80 Fourthly and finally, it is the fact in MMK’s case, as in the separate cases of his brothers, that his continuing denial of any guilt makes it extraordinarily, albeit understandably, difficult to get from the specialised reports any real assistance on the crucial factor of potential re-offending.

81 The submissions which were made for MMK concentrated, understandably, upon his young age.

82 In a recent judgment given in the Court of Criminal Appeal, I expressed some views upon this topic. The particular decision is Reg v WM, [2004] NSWCCA 53. The other members of that Bench, Grove and Bell JJ, agreed with my own judgment. I return to what I said on that occasion because it expresses briefly what I believe to be the current law:

“47. It is trite that the youth of an offender is always a matter of anxious concern to a sentencing Court. There is, however, nothing determinative about youth of itself. The respondent was not, at any material time, a child in any sense that would be accepted by an intelligent, reasonable and properly informed member of the public. A young man in his late teens who commits the kinds of crime which were committed by this respondent cannot reasonably expect to avoid, and must not in any event be permitted to avoid, his just desserts, simply by appealing conveniently to his comparative youth.

52. As to rehabilitation, there is no dearth of authority for the proposition that the law regards it as being in the interests of the community as a whole that a young offender, such as the respondent, should be given every proper encouragement to rehabilitate himself.

53. The combined effect of youth, at least a degree of remorse, and apparent prospects of rehabilitation, in combination undoubtedly justified a measure of mitigation of what would otherwise have been well deserved severe sentences of imprisonment. It is, however, always necessary to ensure that an attempt to effect some such mitigation of sentence does not produce an end result in which the perceived subjective considerations simply swamp the objective criminality, reasonably and sensibly assessed, of the particular offending conduct.”

83 I shall come, later and separately in these remarks, to strike a balance of the objective facts and MMK’s subjective features.

· MAK

84 MAK is now aged 23 years. He has been in continuous custody since his arrest on 1 August 2002. He is unmarried. He has no dependents. He has no recorded criminal antecedents. He is said to have other matters pending against him; but I see no basis in the evidence now available for my now sentencing him upon what amounts to the proposition that although he has at present no criminal antecedents, it might not be long before he does in fact acquire some. He was previously in lawful and gainful employment as a security guard, with the particular task of patrolling Sydney urban and suburban trains.

85 At the sentencing hearing I marked for identification as MFI P 1 (MAK) on sentence some professional reports concerning MAK. There were two such reports: one being a Probation and Parole Service Pre-Sentence Report dated 12 February 2004 and the other being a psychological pre-sentence report prepared by the Forensic Psychology Services Unit of the Department of Corrective Services, and dated 13 February 2004. I can find no record of these documents having been marked formally as exhibits in the proceedings concerning MAK. I have had regard for present purposes to the contents of both documents, because they are obviously of importance to a proper understanding and assessment of MAK’s position as relevant to his present sentencing. I formally order that the two documents be marked together as Exhibit P1 (MAK) on sentence.

86 The earlier of the reports is fairly brief, for the reason that it was not seen by the reporting Probation and Parole Officer to be possible to say much that might be thought useful in the light of MAK’s continuing denial of any wrong-doing. The opinions which the reporting Officer felt justified in making are summarised as follows:

“MAK presents as a man who was polite and cooperative in the preparation of this report. However, he has been convicted of a very serious offence in company with three of his brothers. In some respects this is difficult to understand in the light of his role in shouldering major responsibility during the difficult period when his family were adapting to life in a new country. Nevertheless he seems reluctant to acknowledge conflicts or question behaviour of other family members to whom loyalty would seem to be the prime consideration. This may have lead to errors of judgement on his part. His description of his situation with his girlfriend is an indication of his ability to deny reality and to idealize important relationships

87 The later of the two reports is more detailed; but it, too, is limited by reason of the continuing denials of MAK. The Static-99 testing of which I have earlier spoken in connection with MSK was administered also to MAK. The static/historical risk factors indicated a risk level referable to a medium/low risk group, but with ambiguities which it was sought to refine by the bringing into account of the so-called dynamic risk factors. The report summarises these factors as follows;

“Dynamic risk factors are those that relate to the offender’s psychological status and history and to his recent life circumstances. They can be considered to be an index of current “live risk”, can change over time, and are therefore subject to intervention. Consideration of dynamic risk factors suggests that the actual risk level given above is an underestimate of MAK’s risk. The following issues are of concern:

· The on-going denial of the offence in the face of the significant evidence to the contrary

· The distorted family dynamics and the apparent dislocation of value systems that seems to underlie the offences

· The sibling’s lifestyle at the time of the attacks, including the possession of weapons, which appears to have been a significant factor in his offending behaviour

· His apparently volatile intimate relationship, and lack of awareness of the dysfunctional aspects of the relationship

· The nature of the offence itself, i.e. the fact that it was not perpetrated in isolation but in the company of both older and younger siblings and an affiliate

· His ability to disregard the needs of others in the pursuit of his own, even where it means degradation and assault

· His avowed admiration for his younger brother MMK, given MMK’s involvement and use of aggression within the index offence. Further exploration is needed in this area in order to establish MAK’s core beliefs surrounding the use of aggression and violence

· His distorted ideas of what may be meaningful to the victims in terms of the damage done to them

· His limited ability to reflect upon both the negative and positive aspects of his personal background and aggressive behaviour within his interpersonal relationships”

· MRK

88 MRK was born on 19 November 1994. He was aged, therefore, 17 years and some 8 months as at July 2002. He is now aged 19 years and some 5 months. He is unmarried and has no dependents. He has one recorded criminal antecedent; but he was dealt with in connection with it by way of a bond. The matter was non-sexual in its nature; and I have disregarded it for present purposes. He has been in continuous custody since his arrest on 1 August 2002.

89 Like his brothers, MRK continues to maintain his innocence. The Court cannot accept that stance because it contradicts flatly the verdicts of the jury, which verdicts were, as I respectfully think, amply justified by the evidence.

90 The sentencing of MRK is overshadowed, as in the case of his brothers, by the refusal to admit to any relevant wrong-doing. In an attempt to come to grips in a fair way with the practical consequences of that stance of MRK, the Court has had the benefit of a considerable body of expert opinion evidence.

91 Exhibit C2 (MRK) on sentence is a Juvenile Justice background report. It is a specialised report prepared within the specialised Sex Offenders Programme which the Department of Juvenile Justice maintains.

92 This report sets out a history, provided by MRK himself, which details a very dysfunctional family environment both in Pakistan and in Australia. The history embraces wide-ranging allegations of domestic violence suffered by MRK, not least of all in Australia and at the hands of his older brothers, including MAK who was his effective guardian in the absence abroad of MRK’s parents.

93 The history is frank, and troubling, in dealing with MRK’s sexual experience and attitudes. His first sexual experience was, according to MRK, a consensual one that took place when he was 16 years of age. Thereafter he describes his participation from time to time in what he calls, in the modern fashion, “one-night stands”, a euphemism, of course, for sexual promiscuity. MRK’s given history contains acknowledgements of alcohol and cannabis abuse.

94 The report gives a detailed review of MRK’s employment history; of his school history; and of his behavioural history since he was taken into custody. In each of those areas the picture that emerges is, overall, one of quite striking contrasts: between periods of social civility and episodes of social aggression and dysfunction; between demonstrated academic capacity and an unwillingness to apply himself properly; between a demonstrated capacity to hold down a job, and a slip-shod approach to his work responsibilities. It is a picture which I find perplexing in its confused elements, and extraordinarily difficult to assess, above all as to future probabilities.

95 The report itself contains the following assessment:

“The nature of the offences committed by (MRK) are very serious. The offences suggest a disregard for the consequences upon the victims, an exaggerated sense of entitlement and a focus on his own needs and self-gratification.

The lack of responsibility for the offences that (MRK) is assuming is of significant concern considering the degree to which he is denying any involvement in the offences and the fact that he claims that the victims have fabricated the facts pertaining to his involvement. In effect, (MRK) disputes all of the aspects contained within the police facts and the transcripts of the victims’ evidence in regards to his involvement in the offences. He states that he was not involved in any way in the offences, and in fact, that he does not know if the offences actually occurred. He states that if the offences did occur, that he had no knowledge or awareness that they were occurring. He states that if he had been aware of the offences being committed that he would have assisted the victims or sought help for them. Given the fact that he actively removed one of the victim’s phones to prevent her from seeking help and also that he did not act when one victim begged him for assistance, such would seem unlikely. He presents as a young person unwilling to acknowledge the contributing factors to his offending behaviour and is claiming no responsibility for his behaviour.

In considering the nature of (MRK’s) sexually aggressive behaviour and in understanding what individual factors may have contributed to (MRK’s) decision to participate in and possibly plan the offences, no insight is offered by (MRK) himself. Review of the circumstances of the offences and (MRK’s) history suggest however that this behaviour has emerged in the context of a lifestyle characterised by significant non-sexual behavioural disturbance, including non-sexual aggression, an impaired ability to exert personal control across a number of situations, alcohol abuse, a persistent pattern of family violence and neglect, the absence of appropriate parental supervision and guidance during adolescence, and distorted attitudes and beliefs.

In regard to (MRK’s) amenability to treatment, individual assessment suggests that as a consequence of (MRK’s) outright denial, his motivation to address his offending behaviour at present is poor. Whilst (MRK) maintains his denial, he will be unable to gain significant insight into the contributing factors and motivations for his involvement in the offences. Whilst clearly it is preferable that (MRK) acknowledge his involvement in the offences, it is noted that denial does not necessarily mean that (MRK) may not be able to benefit from offence specific treatment. It is noted however, that for (MRK) to be able to access the Adult Correctional Sex Offender Program, denial may preclude him being accepted into the program. (MRK’s) father and other family members also support his denial. This is likely to pose a significant restraint in regards to successfully challenging (MRK’s) stance and to invite him to take responsibility for his offending behaviours.

Although (MRK’s) account of the offences remains at odds with the facts, it is not uncommon for young people convicted of sexual offences not to make a full disclosure of their actions as they can feel embarrassed and ashamed of their behaviour and are fearful of the reaction of those close to them. These restraints appear particularly pertinent for (MRK) given his concern about his father’s capacity to “get angry” with him in regards to disclosures made throughout the current assessment. (MRK) is also evidencing concern over the fate of his brothers and the possible ramifications resulting from his family’s position that he did not support his brothers and father by maintaining their denial that the victims were at the house on the night of the offences. (MRK) is possibly also restrained from being willing to assume more responsibility for his offending because of his stated intention to appeal both his conviction and his sentence.

It is hoped that following the resolution of the current Court process, in terms of (MRK’s) stated intention to lodge appeals, that he may be more willing to accept more responsibility for his offending. However, it is of concern that (MRK’s) general tendency to deny or minimise past and present behavioural concerns and his tendency to present himself in a positive light, suggests that he may have some degree of difficulty in engaging in a meaningful counselling relationship.”

96 Part of this formulation is based upon what are described professionally as “Coding Rules of Static 99”. Static 99 is “an actuarial risk assessment scale intended for use with males aged at least 18 who are known to have committed at least one sexual offence”. It suffices to say that in my opinion the utility and the reliability in MRK’s case of these coding rules were effectively discredited by a precise and telling cross-examination by learned counsel for MRK. I have disregarded the coding rules. That does not entail, of course, that I disregard the entirety of the formulation that I have earlier quoted. It does entail that the difficulties of assessment earlier mentioned are unhelpfully increased, rather than helpfully decreased.

97 Exhibit C 5 (MRK) on sentence is a “medico-legal forensic psychiatric report” prepared at the Court’s request by Professor David Greenberg, an established professional specialist in forensic psychology.

98 In Professor Greenberg’s opinion MRK does not suffer from any severe mental illness; from any psychotic illness; or from any developmental disability. MRK does have, however, “personality problems”. He would “probably qualify for the diagnosis of Obsessive Compulsive Disorder”. Professor Greenberg has been, as I gather from his report, continuously involved in MRK’s psychological counselling, and in his treatment with appropriate medication. MRK is said by Professor Greenberg to be responding positively to this regime.

99 Exhibit P3 (MRK) on sentence is a brief report from a Juvenile Justice Counsellor at the Juvenile Detention Centre in which MRK is at present detained. The report contains the following statement which I find, to speak frankly and considering what is at stake for MRK, to be impertinent in both conventional senses of the word:

“It is DJJ policy that circumstances surrounding the offences of detainees including others involved in the matters are not discussed prior to trial and sentencing. Therefore I have not discussed these matters with ….. (MRK) ….. and will not comment on these matters.”

100 What follows is a page of bureaucratic generalities which add nothing of substance to what is canvassed more fully and helpfully in other available materials.

101 Among those materials is a report from Mr. Webster, who reported also on MMK’s case. The report is part of Exhibit P2 (MRK) on sentence. It comprises 17 pages of close typing, and it is not possible to reduce its considerable, and largely technical, detail into a few crisp sentences. It is, I think, more useful to state the following conclusions which are based not only on Mr. Webster’s written report, but on his supplementary oral evidence.

102 First, I note Mr. Webster’s provisional diagnosis of symptoms consistent with a condition of schizophrenia. I have thought about that proposition, having in mind the well known statements of principle made by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. I intend not the slightest disparagement of Mr. Webster’s evidence when I say that I am not satisfied in that Briginshaw sense that I should accept and act upon the provisional diagnosis. Mr. Webster himself acknowledged with ready frankness that he had not previously made such a diagnosis of schizophrenia; and that he had “no expertise in the disorder”. More importantly, Mr. Webster’s diagnosis does not seem to me to be reconcilable with Professor Greenberg’s opinion; and it is that latter opinion that I prefer on the given Briginshaw test.

103 Secondly, the overall thrust of Mr. Webster’s opinions and observations seems to me to strengthen the impression, of which I have spoken at para 94 above of a kaleidoscope of contrasts and contradictions.

104 Thirdly, I have kept in mind, when evaluating all of the professional opinions about MRK, that the crucial question is not whether he will, upon release, offend again; but the very different question whether there is, as matters stand, a real risk, unacceptably run from the point of view of the proper protection of the public, that upon release he will re-offend.

105 Fourthly, the present assessment, reasoned and reasonable, of a risk thus defined calls for a careful balancing of four broad features of MRK’s case. One of those features is the fact that his case is not tainted by any act of actual sexual violence towards either LS or HG. A second feature is a tendency to take weakly what I might call the line of least resistance when confronted with a situation calling for strength of character. A third feature is a tendency to impulsive aggression. The fourth feature is a demonstrated capacity both to dissemble and to lie outright when it seems to be of advantage to do so. MRK’s admitted lies told during his ERISP, and told later to the Supreme Court when he sought bail, are obvious illustrations of the point.

106 Fifthly and finally, MRK, for all of his ups and downs while in custody, has successfully obtained his HSC while in that custody. He was, as I understand the fact, the first detainee in the particular Juvenile Detention Centre to accomplish that achievement. And it is, in my opinion, an achievement of real substance. The promise thus shown by MRK is, I think, buttressed by a fair overview of much of the material that forms the balance of Exhibit P2 (MRK) on sentence.

Additional Matters Relevant to Sentence

· S 21A, Crimes (Sentencing Procedure) Act 1999 (NSW)

107 This section stipulates a number of aggravating factors, and a number of mitigating factors, all of which a sentencing Court must take into account except where an aggravating factor is itself an element of the relevant offence: sub-s(2); or when it would be “contrary to any Act or rule of law” to take any particular stipulated factor into account: sub-s (4).

108 The stipulated factors are inclusive and not exclusive: sub-s(1). They are not some kind of prescriptive check list; but in cases of the present kind it is, I think, useful to work through the two statutory lists.

109 Of the stipulated aggravating factors which are enumerated in sub-s (2), the factors identified as (a), (b), (c), (d), (e), (f), (h), (i), (j), (m) and (n) are either inappropriate in any event, or are inapplicable because they are elements of the offences for which sentences are now to be passed.

110 As to the factor (g), I am well satisfied that there was substantial harm, both physical and emotional, caused to both LS and HG.

111 As to the factor (k), I think that there was an abuse of trust by all of the offenders. The four brothers, in particular, must have understood that LS and HG were, at least to some extent, assuming that they would be as safe on the 27th as they had been on the 13th.

112 As to the factor (l), there could be no sensible doubting that, as I have earlier remarked, these two teen-aged school-girls were not merely vulnerable, but effectively defenceless.

113 Of the stipulated mitigating factors that are enumerated in sub-s (3), those covered by paragraphs (a), (b), (c), (d), (i), (j), (k), (l) and (m) can be at once excluded.

114 As to the factor (f), I observe that the factor itself is obviously intended to go beyond the matter of previous convictions, if any; something for which the factor (e) specifically provides. Insofar as the establishing of this additional factor rests upon written recommendations from persons resident in Pakistan, I am not prepared to act upon such material while it remains untested. I am not persuaded otherwise to make a positive finding of good character in the case of any offender. What is known of their respective social proclivities and behaviour does not seem to me to be consistent with positive good character. If good character means “of good general repute”, then I think, once again, that the evidence in hand does not justify a positive finding to that effect. These offenders are all fairly treated, in my opinion, if they receive the benefit of factor (e).

115 As to the factors (g) and (h), I have already pointed out the very great difficulty in resolving either factor. I shall say something more about these factors when I come to the passing of their individual sentences upon the individual offenders.

· The Victim Impact Statements of LS and HG

116 Part 3, Division 2 of the Crimes (Sentencing Procedure) Act contains a group of provisions dealing with the topic of Victim Impact Statements.

117 Each of LS and HG has furnished a Victim Impact Statement. In the case of each offender I accepted the tender by the Crown of each such statement. I am entitled “to consider” the contents of the statements before proceeding to pass sentence, and I have done so. I receive no guidance whatsoever from the statute as to quite what consideration I may thus give to the statements. I proceed therefore upon two bases.

118 First, I have treated the contents of the statements as explaining the consequences, respectively, to LS and HG of their horrifying ordeals. I accept that what was done to those young girls caused each of them great emotional damage. What each of them says makes sad reading. All that any outsider, this Court included, can say usefully is to express, as this Court does indeed express, the hope that time will live up to its reputation as the great healer, so smoothing away the worst of the memories and any permanent damage, whether physical or emotional.

119 Secondly, I have borne in mind at all times that the relevant legislation, whatever else it might be intended to achieve, stops short of giving the victims of crime, even of serious sexual crime, any kind of right or power to dictate in any way what particular sentence(s) should be passed ultimately by the Court. It is fair to add that neither Victim Impact Statement suggests in any way the contrary of that proposition.

· The Statutory Maximum Sentence of Life Imprisonment

120 A contravention of section 61JA of the Crimes Act attracts upon conviction liability to a maximum penalty of imprisonment for the term of the offender’s natural life: s 61JA(2). Such a punishment is not mandatory; and a sentencing Court is authorised expressly by s 21(1) of the Crimes (Sentencing Procedure) Act to impose a sentence of imprisonment for a specified term. The draconian nature and consequences of a life-means-life sentence are canvassed eloquently, and in terms which I expressly adopted in Glasby, unreported; 11 June 1998, by Allen J in Baker: NSWCCA; unreported; 20 September 1995. I need not repeat the whole of Allen J’s exposition. It will suffice to note, and to adopt as I respectfully do, his Honour’s observation that “(s)uch a sentence cannot lightly be imposed in any civilized society”.

121 I add two propositions of my own, having in mind that some at least of the present offenders will be applying for leave to appeal against their sentences, and it would be useful to have appellate authority upon the points.

122 The first proposition is that a Judge should not impose the literal life sentence in the absence of a clear Crown submission that such a course should be taken in the particular case.

123 The second proposition is that it is wrong in principle for a sentencing Judge to say that he will not impose the literal life sentence, and then to impose a determinate sentence, or a group of determinate sentences, which have in every real and practical sense the same result.

124 In the cases of the present offenders it seems to me to be completely clear that in none of those cases would it be just to impose the literal life sentence, notwithstanding that I am firmly of the view, for reasons earlier herein explained, that the offences are worst-case examples.

· Cumulation, Concurrence and Totality

125 I propose to take the following approaches.

126 First, I propose to set a higher sentence for a rape that was actually committed by the offender who is being sentenced; and a lower sentence for a rape that was actually committed by a co-offender. I do not see any justification for a significant difference; but I believe that fairness justifies some difference.

127 Secondly, I propose to look at a measure of cumulation at two points of the overall structuring of the sentences.

128 There should be considered, first, a measure of cumulation proper to the sentences passed in respect of the four rapes committed upon LS; and a separate measure of cumulation proper to the five rapes committed upon HG. Not to consider that course seems to me to risk sending a signal to would-be sexual predators that there is not much more to be feared from carrying out a number of rapes than is to be feared from carrying out a single rape.

129 There should be considered, secondly, a measure of cumulation of the two groups of sentences set for, respectively, the rapes carried out upon LS, and the separate rapes carried out upon HG. Not to consider that course seems to me to risk sending a signal to would-be sexual predators that there is not much more to be feared from raping two victims than is to be feared from raping only one victim.

130 Thirdly, I reject the submissions that either of the present offenders who have been convicted of more than one rape should be punished for, in effect, one extended rape.

131 It seems to me that a rapist, having completed an act of forced intercourse, has to choose between two practical options. Either he is satisfied with that completed act, in which case he will not further assault his victim; or he is not so satisfied, in which case he will commit a successive, and distinct, rape. That the rapes committed in the latter event might be committed in rapid succession does not seem to me to negate the distinctness of the successive assaults.

132 Fourthly and finally, I have approached the matter of totality having in mind the various, and not always easily reconciled, purposes of punishment: the protection of society; personal and public deterrence; denunciation of the crimes; retribution for the injury caused, but remembering always that retribution ceases to be just when it degenerates into primitive vengeance; and the reform of the offender: cf Previtera (1997) 94 A Crim R 76 per Hunt CJ at CL at 86.

133 In the foregoing connection I should say that I do not accept that general deterrence is any less a factor in the cases of MMK and of MRK than in the cases of their co-offenders. It is a sad fact of contemporary life in Sydney that boys in their late teens are not infrequently serious and even violent sexual offenders; a proposition that curial experience in recent years has established all too clearly. The worst possible signal to send into those quarters is that it is not seen by the Courts as necessary to make a proper example of any such young offender, and to do so precisely in order to deter further such offending, whether by the offender, or by those others who might be tempted to follow in his foot-steps.

Two Matters Collateral to Sentence

134 I acknowledge at once that these matters are not directly relevant to sentence; but they arise, in one case directly out of the sentencing process; and in the other case out of the trial of MSK and MAK.

135 The convictions resulting from the trial of MSK and MAK are, already, the subject of formally lodged appeals. The sentences now to be passed upon MSK and MAK are consequential upon those convictions. If the convictions are set aside, then the sentences now to be passed must fall with the convictions. In other words, the pre-trial proceedings, the trial proceedings themselves, and the framing of sentences, in the cases of MSK and MAK, laborious and hugely time-consuming as those exercises have been, might turn out to have been a waste of time.

136 Should that happen, then it is at least on the cards that the reason why it will happen will be that an appellate Court comes to the conclusion that s 294A of the Criminal Procedure Act 1986 deprived MSK and MAK of a fair trial. The notices of appeal clearly adumbrate such an argument; and it is clear from things said by MSK and MAK that they are aware of, and all too alive to, the forensic potential of the decision of the High Court of Australia in Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

137 In earlier interlocutory judgments, and in my charge to the jury, I have said all that I need to say in explanation of my view that s 294A is, in its practical consequences for persons accused of the prescribed serious crimes, both high-handed and heavy-handed.

138 My present purpose is to observe that LS and HG had to give evidence in two separate trials, principally because of the procedural consequences of s 294A. I believe that I can say fairly that each of them was treated by all concerned with proper respect, understanding and patience. Each gave her evidence with, generally speaking, a marked composure. There were, of course, moments when it was necessary to take a short break, or otherwise to settle the witness down; but neither girl simply broke down even when face to face with, relevantly, MSK and MAK. Based upon the experience of that trial, I can see no reason to doubt that a properly resolute exercise by the Court of its relevant powers as they existed pre-section 294A would have been adequate to ensure that MSK and MAK were neither denied their rights, nor permitted to abuse them.

139 I well understand that to criticise so-called progressive reform is to show, in many quarters, the proverbial red-rag to a bull; but I presume, even so, to propose that serious and urgent attention be given to the repeal of s 294A before it really does become an entrenched vehicle for the wrongful depriving of accused persons of what are, in truth, not merely basic legal rights, but basic human rights as well.

140 The second matter which I wish now to raise concerns the triple O call made by LS in the immediate aftermath of her dumping, in company with HG, at Campsie. The call was taped; and the audio tape became Exhibit C4 in the first trial; and Exhibit C6 in the second trial.

141 What can be heard on the tape is chilling in its depiction of what it really means to be a rape victim. From the moment when I first heard the tape, I thought of it as an ideal educational aid in warning young people, boys and girls alike, of the need to take care not to become in the one case a perpetrator, and in the other case a victim, of any form of sexual offence. To that end I invited the learned Crown Prosecutor to take up that idea in the appropriate quarters. The Crown Prosecutor was good enough to do so, and to report as follows:

“I have sought assistance from Detective Superintendent McKay, who is the officer-in-charge with the Child Protection Enforcement Unit of the New South Wales Police Force, and who I had a discussion with over the past week. There is support in that quarter for your Honour’s proposition. And I am told the police could easily disseminate the tape to schools as part of a child protection package that they have in place.”

142 It was indicated also that this could be done in a way that would not involve the invasion of anyone’s privacy.

143 I recommend strongly that such use of the tape should be put at once in hand. To that end I request the Registrar of the Court to make urgent contact with Detective Sergeant McKay, or such other officer of the Child Protection Enforcement Unit as might be appropriate, in order to have the contents of the audio tape incorporated into the current child protection package promoted by the Child Protection Enforcement Unit.

144 In that connection I venture the suggestion that the stark horror of what can be heard on the tape might be supplemented usefully by putting to an audience some simple propositions of fact.

145 For boys, the propositions might be to the following effect:

[1] Forced sex of any kind with any woman or girl is not a game, or a prank, or a practical joke, or part of becoming or of being a man. It is, quite simply, a crime.

[2] If you commit such a crime the high odds are that you will be found out, tracked down, and sent to gaol. Police experience and expertise, and scientific advances, are constantly making detection and punishment increasingly likely.

[3] It is no excuse for a serious sexual crime that it was carried out by someone who was young; or weak-willed; or easily led; or drunk; or on drugs. Even in such cases a gaol sentence of some kind is practically certain.

146 And then, perhaps, this simple question:

147 For girls, those propositions might be to the following effect:

[1] If you get into or onto any vehicle with any man whom you do not know, or whom you barely know, then without more you are at risk.

[2] The risk is hugely increased if you join up in that way, not with one stranger but with a group of strangers.

[3] The risk can take various forms. You might be robbed. You might find yourself the object of a sexual advance that is unwelcome and sleazy but at least non-violent. You might find yourself the victim of an indecent assault stopping short of forced sexual intercourse. You might find yourself, if things go badly wrong, the victim of forced sexual intercourse with one, or with more than one, attacker.

[4] You should not think that a mobile phone is some kind of guaranteed protection against those risks. The two girls whom you can hear on the tape had mobile phones; and the phones did not protect them at all.

148 And then, exactly the same question as that earlier suggested.

149 I know that it is not usual for a sentencing Judge to speak as I have just now done; but circumstances always alter cases, and the one thing that has struck me throughout both trials, as well as throughout the proceedings on sentence, has been the sheer waste of young lives and prospects. It seems to me that anyone who is in a position, at least to try to prevent other such cases, has a serious obligation in conscience to make the attempt in fact.

150 It is prudent to add, and to emphasise, that what I have been saying in this section of the remarks on sentence expresses individual opinions deriving from the present matters. I have no standing to speak for, and I ask not to be misrepresented as speaking for any other Judge of this Court, or for the Court as a collegiate body.

Conclusions and Formalities

151 It is useful to recall the following observations of Mahoney JA in C (1994) 75 A Crim R 329 at 316-317:

“In sentencing the court must, in my opinion, take a firm grasp of reality. It is not to be circumscribed in what it does by artificial presumptions. On the other hand, a sentencing judge will not jump to conclusions or act upon ‘what everybody knows’ or upon what accords with current fashion in thinking. The judge must act upon the realities of each case.”

152 Those practicalities have produced a degree of cumulation and of concurrence which does not implement, literally, the letter of what is said at paragraphs.127, 128 and 129. That is so because to have given pedantically literal effect to both of the propositions noted at paragraphs 128 and 129 would have produced total sentences exceeding, in my opinion, the just requirements of the individual cases of the offenders.

· MSK

153 If it be accepted, as I do in fact accept, that the narratives of both LS and HG are beyond reasonable doubt essentially truthful and reliable, then it was actually MMK who took the first violent step when he launched himself upon LS; but it was MSK who thereupon swung into action, taking effective control of proceedings and thereupon galvanising into action the others then present. In my opinion MSK stands for sentence as the effective ring-leader in the whole sorry affair.

154 I have taken into account all of the subjective matters to which I have earlier referred. I recognise that MSK has not previously been in full-time custody; and that he is likely to spend at least part of his imprisonment in protective custody of some kind. I think, however, that MSK’s case is one of those cases in which the objective criminality leaves little scope for subjective mitigation. I have considered, as by law required, whether there should be some downward adjustment of the non-parole period. I take so serious a view of MSK’s objective criminality; and so sceptical a view about the practical utility of any particularly extended parole period, that I have decided not to vary in his case the statutory norm of 75 per cent.

155 MSK: You are formally convicted upon each of the nine verdicts of guilty that were returned against you by the jury.

156 You are sentenced as follows:

· On each of Counts 5, 6, 7, 8 and 9 to imprisonment for 10 years dated to commence on 13 August 2002

· On Count 4 to imprisonment for 10 years dated to commence on 13 August 2004

· On Count 1 to imprisonment for 12 years dated to commence on 13 August 2006

· On Count 2 to imprisonment for 12 years dated to commence on 13 August 2009

· On Count 3 to imprisonment for 12 years dated to commence on 13 August 2012, with a non-parole period of 6-1/2 years to commence on 13 August 2012 and to expire on 12 February 2019

157 The result overall is imprisonment for 22 years commencing on 13 August 2002 and expiring on 12 August 2024, with a total non-parole period of 16-1/2 years commencing on 13 August 2002 and expiring on 12 February 2019, on which last date you will first be eligible for release to parole.

· MMK

158 Notwithstanding MMK’s youth, I see no just cause to pass head sentences any less severe than those passed upon MSK. MMK was in the forefront of the violent and degrading events of the relevant evening. That one so young would commit three dreadful rapes upon a girl as helpless as was HG is a truly appalling state of affairs. It calls, youth or no youth, for condign, and unmistakably condign, punishment.

159 I have considered the whole of the relevant subjective matters. I have allowed for the fact that this is a first incarceration for MMK, and that he is likely to spend some part of it in some form of protection.

160 I have considered whether MMK, albeit that his conduct towards the two girls was every bit as bad as that of MSK, might not properly be given nevertheless some amelioration of the non-parole period.

161 I have come to the conclusion that his youth might fairly attract a non-parole period less than the statutory 75 per cent. His prospects of rehabilitation are clouded in the way previously discussed; but I do not think that it could be said fairly that those prospects are so poor as to rule out any amelioration of the non-parole period. There is no gainsaying that any such concession is something of a calculated risk; but the incidence of that risk is held sufficiently in check, in my view, by the operation of the parole assessment system. There is a need to keep in mind proper parity between MMK and MRK, the other young offender.

162 I am satisfied that it would be appropriate to make an order pursuant to section 19 of the Children (Criminal Proceedings) Act. The offender’s youth, and the need to maximise his opportunities for counselling, treatment and rehabilitation constitute, in my opinion, special circumstances warranting the making of such an order.

163 MMK: You are formally convicted upon each of the nine verdicts of guilty that were returned against you by the jury.

164 You are sentenced as follows:

· On each of Counts 1, 2, 3 and 4 to imprisonment for 10 years commencing on 1 August 2002.

· On each of Counts 9 and 10 to imprisonment for 10 years commencing on 1 August 2004.

· On Count 6 to imprisonment for 12 years commencing on 1 August 2006.

· On Count 7 to imprisonment for 12 years commencing on 1 August 2009.

· On Count 8 to imprisonment for 12 years commencing on 1 August 2012, with a non-parole period of 3 years commencing on 1 August 2012 and expiring on 31 July 2015.

165 The result overall is imprisonment for 22 years commencing on 1 August 2002 and expiring on 31 July 2024, with a total non-parole period of 13 years commencing on 1 August 2002 and expiring on 31 July 2015, on which last date you will first be eligible for release to parole.

166 The Court orders, pursuant to section 19 of the Children (Criminal Proceedings) Act 1987 (NSW) that you serve your sentences in a Juvenile Detention Centre until you attain the age of 21 years.

167 The Court recommends that you be given every proper opportunity and encouragement to pursue such course or courses of academic instruction or of vocational training as you might wish to undertake; and that you be given continuing professional psychological, and if appropriate psychiatric, counselling and treatment.

· MAK

168 MAK himself actually committed one rape, the victim being LS. To that extent his culpability is somewhat less than that of MSK and of MMK, but not dramatically less. I am satisfied beyond reasonable doubt that MAK was active and prominent in the initial episodes of violence towards LS in particular. He, too, has not previously served a term of full-time imprisonment; and he, too, will spend at least part of his imprisonment in some form of protection. The subjective features of his case are clouded, especially as to the assessment of future probabilities, by his continuing denial of any wrong-doing. Balancing out all of those considerations as best I can do it on the basis of such evidence as is available to me, I am unpersuaded that there should be any downward adjustment to the statutory non-parole period of 75 per cent of the total head sentence; and I am unpersuaded that the head sentences making up that total should themselves be reduced below the comparable levels set for MSK and MMK.

169 MAK: You are formally convicted upon each of the nine verdicts of guilty that were returned against you by the jury.

170 You are sentenced as follows:

· 0n each of Counts 1, 2 and 3 to imprisonment for 10 years commencing on 1 August 2002

· On each of Counts 5, 6, 7, 8 and 9 to imprisonment for 10 years commencing on 1 August 2004

· On Count 4 to imprisonment for 12 years commencing on 1 August 2006 with a non-parole period of 8 years commencing on 1 August 2006 and expiring on 31 July 2014

171 The result overall is imprisonment for 16 years commencing on 1 August 2002 and expiring on 31 July 2018 with a total non-parole period of 12 years commencing on 1 August 2002 and expiring on 31 July 2014, on which last date you will first become eligible for release to parole.

· MRK

172 MRK stands, in one obvious sense, apart from his co-offenders on the issue of objective criminality. I accept the general thrust of the written submissions of his counsel as to the appropriate objective factual findings; but I accept also the two added considerations advanced in the Crown submissions in reply.

173 The subjective features of MRK’s case are troubling for the reasons earlier explained. I allow for the fact that this is his first time in gaol; and that he is likely to spend some part of his imprisonment in some kind of protection, especially when the time comes for his removal to an adult gaol.

174 I believe, however, that in his case the Court is justified in adjusting the head sentences and the non-parole period so as to punish his complicity in these offences, and in particular to punish his behaviour towards LS and HG as they respectively described that behaviour. That behaviour is, of course, nowhere near as bad as that of the actual rapists, but it was callous and cowardly, and it undoubtedly played a part in the unfolding of the dreadful events of the night.

175 Some flexibility is justified, also, by the need not to snuff out peremptorily the promise shown by MRK in attaining his HSC in such unpromising circumstances.

176 It should be acknowledged in the case of MRK, as in that of MMK, that the reduction of the non-parole period entails the taking of a calculated risk, the assessment of future probabilities being as difficult as it is. In MRK’s case, as in that of MMK, I think that the parole assessment system itself will operate as, so to speak, a fail-safe device. There are, I think, special circumstances, broadly the same as those in the case of MMK, justifying an order pursuant to section 19 of the Children (Criminal Proceedings) Act.

177 MRK: You are formally convicted upon each of the nine verdicts of guilty that were returned against you by the jury.

178 You are sentenced as follows:

· On each of Counts 1, 2, 3 and 4 to imprisonment for 8 years commencing on 1 August 2002.

· On each of Counts 6, 7, 8, 9 and 10 to imprisonment for 8 years commencing on 1 August 2004, with a non-parole period of 3 years commencing on 1 August 2004 and expiring on 31 July 2007.

179 The result overall is imprisonment for 10 years commencing on 1 August 2002 and expiring on 31 July 2012, with a non-parole period of 5 years commencing on 1 August 2002 and expiring on 31 July 2007, on which last date you will be first eligible for release to parole.

180 The Court orders pursuant to section 19 of the Children (Criminal Proceedings) Act 1987 (NSW) that you serve your sentences in a Juvenile Detention Centre until you attain the age of 21 years.

181 The Court recommends strongly:

[1] that when it comes time to consider your transfer to an adult gaol, every practicable consideration be given urgently to your admission thereupon into the Young Offenders Programme;

[2] that throughout your imprisonment you be given every practicable facility and every reasonable encouragement to continue your studies and any vocational training that you might wish to undertake;

[3] that the necessary administrative arrangements be made to permit of your continuing treatment and counselling by Professor Greenberg;

SULLY J:

THURSDAY 29 APRIL 2004

ADDENDUM TO REMARKS ON SENTENCE

182 HIS HONOUR: What I am going to say will be published in formal terms as an addendum to the Remarks on Sentence of 22 April 2004.

183 It is not necessary to add anything to the Remarks on Sentence or to the formal sentences passed in terms of the overall results as expressed in respectively paras 157, 165, 171 and 179. It is necessary, however, to stipulate a specific non-parole period for certain of the sentences that are components of some of those overall results.

184 I am satisfied that it is appropriate to make those amendments in the exercise of the powers in that behalf which are conferred by s 43 of the Crimes (Sentencing Procedure) Act 1999.

185 To that end I make the following orders:

· MSK:

Paragraph 156 of the Remarks on Sentence is amended so that the sentence passed upon count 2 is expressed as follows:

· MMK:

Paragraph 164 is amended so that the sentence passed in respect of count 6 is amended to read:

On count 6 to imprisonment for twelve years commencing on 1 August 2006 with a non-parole period of nine years commencing on 1 August 2006 and expiring on 31 July 2015.

On count 7 to imprisonment for twelve years commencing on 1 August 2009 with a non-parole period of six years commencing on 1 August 2009 and expiring on 31 July 2015.

· MAK:

· MRK:

The sentences passed in terms of para 178 are amended so that in respect of each of counts 1, 2, 3 and 4 there is a sentence of imprisonment for eight years commencing on 1 August 2002 with a non-parole period of five years commencing on 1 August 2002 and expiring on 31 July 2007.

**********

Last Modified: 05/03/2004

Citations

Regina v MSK Regina v MAK Regina v MRK Regina v MMK [2004] NSWSC 319

Most Recent Citation

Cases Citing This Decision

2

DH v R [2022] NSWCCA 200

R v MAK [2006] NSWCCA 381

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5

Statutory Material Cited

4

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211

Regina v WM [2004] NSWCCA 53

Briginshaw v Briginshaw [1938] HCA 34

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CITATION:	Regina v MSK Regina v MAK Regina v MRK Regina v MMK [2004] NSWSC 319 revised - 30/04/2004
HEARING DATE(S):	20/2/04; 27/2/04; 1/3/04; 12/3/04
JUDGMENT DATE:	22 April 2004
JUDGMENT OF:	Sully J at 1
DECISION:	See attached for sentences
LEGISLATION CITED:	Criminal Procedure Act 1986 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 Children (Criminal Proceedings) Act 1987 (NSW)
CASES CITED:	Camilleri: unreported, NSWCCA 8/2/90 Twala: unreported, NSWCCA 4/11/94 Veen (No. 2) (1988) 164 CLR 465 Reg v WM [2004] NSWCCA 53 Briginshaw v Briginshaw (1938) 60 CLR 336 Glasby: unreported, 11/6/98 Baker: NSWCCA, unreported, 20/9/95 Previtera (1997) 94 A Crim R 76 Kable v Director of Public Prosecutions (NSW) [1996] 189 CLR 51
PARTIES :	Regina MSK Regina MAK Regina MRK Regina MMK
FILE NUMBER(S):	SC 70201/03; 70002/03; 70202/03; 70203/03
COUNSEL:	M. Cunneen - Crown In person - MSK In person - MAK D. Yehia - MRK A. Haesler - MMK M. McColm - RS
SOLICITORS:	Office of Director of Public Prosecutions In person - MSK In person - MAK Legal Aid of NSW - MRK A.L. Wunderlich & Co. - MMK Mark Klees & Assoc. - RS