Dudley Mark Aslett v Regina

119 It was submitted that an element of the first count was robbery, the taking of property by force or by threat of force. It was therefore not permissible for the sentencing court to take into account as aggravating the appellant's criminality the fact that the offence involved the actual or threatened use of violence. It was submitted that his Honour failed to discriminate between the several offences in his references to aggravating features. 120 These submissions may be accepted. S21A(2) itself provides that the Court is not to have regard to any such feature if it is an element of the offence. Where a sentencing court refers in a general way to aggravating factors which are elements of some but not all the offences for which sentence is being imposed, and without explaining how, in any offence, criminality is thereby aggravated, that court falls into error: R v Street [2005] NSWCCA 139 per Wood CJ at CL at [32] - [34]. 121 Subs 21A(4) provides that a sentencing court is not to have regard to any aggravating or mitigating feature mentioned in the section if it would be contrary to any act or rule of law to do so. It was submitted that his Honour's reference as aggravating criminality to the appellant's record of previous convictions was erroneous. At common law, an offender's prior criminal history does not aggravate the offence but may deprive an offender of leniency or indicate that more weight should be given to retribution, deterrence or community protection: R v Wickham [2004] NSWCCA 193; R v Blair [2005] NSWCCA 78; Veen v The Queen (No 2) (1998) 164 CLR 465. 122 I accept those submissions. 123 The next submission was based upon his Honour's finding under para 21A(2)(h). The para is as follows - (h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability) 124 Bonham's evidence was that he and his co-offenders were told to look for Asians, apparently on the basis that Asians tended to keep money and jewellery in their homes. Mr and Mrs A may be taken to fall within the description "Asians". Whether persons of that description have the quality or tendency asserted by the appellant to Bonham is beside the point. The importance is that the offenders were at least in part motivated by a belief that because their intended victims were Asians they were more likely to have on their premises money and goods they would like to steal. It was submitted that that was quite a different motivation from crimes committed out of race hatred or prejudice. In my opinion that submission should be accepted. It seems to me that a better analysis is that the appellant approved the attack on Mr and Mrs A's home not because he believed that Mr and Mrs A were Asian but because he believed that as Asians they fell into the category of people whose homes might contain valuables suitable for stealing. There was no evidence that the appellant hated Asians. There was no evidence that he was prejudiced against Asians. 125 It was submitted that his Honour erred also in taking into account that the offences involved multiple victims: s21A(2)(m). Clearly, there were multiple victims of the robbery. The same could not be said for any of the other offences for which sentence was being imposed, however, and as before, his Honour did not discriminate between the first count and the remaining counts. 126 I think that these submissions also should be accepted. 127 The Crown conceded that his Honour had erred in the ways contended for by the appellant but submitted that the errors were technical. I would not accept that submission, partly because of the number of errors pointed to and partly because of the length of the sentences imposed for the individual offences and the remarkably long effective sentence. In my opinion this ground of appeal has been made good and the Court should interfere.

Ground 9: his Honour erred in taking into account the sentence his Honour imposed in the matter of Regina v Bilal Skaf and others 128 Defence counsel tendered for the guidance of the court on sentence a schedule of sentences in other cases. The schedule did not contain reference to the matters of R v Bilal Skaf and others, in which his Honour had been the sentencing judge. Referring to the schedule and to that case his Honour said this during the remarks on sentence - The sentences imposed for s61J offences as revealed in the table made available by Mr Stratton, do not contain the sentences imposed by me on the offenders Bilal Skaf, Mohamed Skaf, Bilal Haljid, Mohamed Garnam and others, involved in the gang rape trials over which I presided in 2001 and 2002. These sentences are the subject of appeal, but the Court of Criminal Appeal has not ruled on them, and I have no idea when the appeals might be heard, let alone when decisions might be given. In my opinion it is relevant to consider in the present case those sentences and the reasons I expressed for imposing them. In broad terms I took the view that the ringleader, Bilal Skaf, should get a greater sentence for the offences committed by him than I imposed on his co-offenders because he was the ringleader and he organised the others to commit the offences they committed. I was also of the view that Skaf and each of the other offenders should get sentences for each group of offences committed by them and by the others with whom they were in company, which were partly cumulative on one another, so that it was clear that each additional set of crimes received its own extra punishment. I am of the opinion I was justified in taking this approach and I intend to take it in the present case as well.

129 It was submitted that although his Honour was entitled to take into account general sentencing patterns, which would include sentences imposed by his Honour, his Honour erred in taking into account sentences imposed in quite dissimilar cases. So the sentencing process miscarried. 130 Because of the view to which I have come in two of the remaining grounds of appeal I consider it unnecessary to deal with this ground.

Ground 10: his Honour erred in not correctly applying the principles in Veen v The Queen (No 2) (1987) 164 CLR 465

Ground 12: the sentences were individually and collectively manifestly excessive 131 It is convenient to deal with these grounds of appeal together. 132 A sentencing court should not increase a sentence beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender: See Veen v The Queen (No2) (1987) 164 CLR 465. Mason CJ, Brennan, Dawson and Toohey JJ said this at 475 - It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible. 133 In sentencing the appellant his Honour said this - He has no remorse for what he did. He has expressed no compassion for the plight of his victims. In my opinion he is a cold, callous, vicious and extremely dangerous criminal. The only way to protect society from him is to lock him away from society for many years. To take any other course would be to fail to protect society, and women especially. and this - He shows no contrition or remorse. He is a very clear danger to society, and to protect society he must be removed from it for many years. Hopefully by the time he is sixty-two, he might be able to change.

134 It was submitted that his Honour's remarks on sentence and the length of the sentence imposed upon the appellant establish that his Honour was not simply taking the protection of society into account. Rather, his Honour was increasing the sentence beyond what was proportionate to the offences because of his expressed view that the appellant was a dangerous criminal. 135 The Crown submitted that his Honour's remarks did not convey any intention to impose a sentence disproportionate to those under consideration to extend the period of protection of society. Reference was made to s3A(c) Crimes (Sentencing Procedure) Act 1999, which states as one of the purposes for which a court may impose a sentence on an offender the protection of the community from the offender. Having regard to the appellant's criminal record, which contained a number of matters of violence, the leading role he played in the commission of these offences and the gravity of offences, a non-parole period of thirty years, while severe, was not outside the bounds of sound discretionary judgment. 136 The Crown referred to Markarian v The Queen (2005) 215 ALR 213 and the statement therein by the Justices of the High Court of Australia that it is not open to an appellate court to substitute its own opinion for that of a sentencing judge merely because it would have exercised its discretion differently. Reference was also made to the need, referred to by Sully J in R v Wheeler [2000] NSWCCA 34 for a sentencing court to accumulate sentences when an offender commits multiple rapes. It was submitted that while the sentences appeared high, the Court ought to respect the discretion of the sentencing judge and not interfere with the sentences. 137 I do not understand that in enacting s3A(c) Crimes (Sentencing Procedure) Act the Parliament had any intention of introducing a system of preventive detention contrary to the principles expressed by the High Court of Australia in Veen v The Queen (No2). 138 The appellant's offences were very serious indeed. These findings of the sentencing judge have not been challenged. The appellant was the first to rape the complainant, holding a knife against her cheek and ordering her not to look or he would poke out her eyes. He encouraged the others to rape her knowing that she was bleeding and wounded and that they would make her wounds worse. Her injuries were severe. Her ordeal amounted to torture and extended over a few hours. The complainant suffered physical and lasting emotional harm. She was imprisoned, degraded and utterly humiliated. The offences fell into the worst category of cases. 139 The offences were committed while the applicant was on conditional liberty, serving the parole period for offences of robbery in company. 140 The offences of which the appellant was convicted attracted standard non-parole periods under the provisions of Division 1A of Part 4 Crimes (Sentencing Procedure) Act. The standard non-parole period under s61JA Crimes Act (counts 2, 3, 4, 5, 6 and 7) was fifteen years and for an offence under s112(3) Crimes Act (count 1) seven years. 141 His Honour found that the offences under s61JA were worse than those in the middle of the range and that he ought therefore to impose a non-parole period exceeding the standard non-parole period. In my opinion his Honour was entitled to come to that view. His Honour was also entitled to conclude that the offence under the first count merited a non-parole period exceeding the standard non-parole period. 142 I would not take his Honour's remarks about the need to protect society from the appellant and to lock him away from society for many years or the repeated remark that the appellant was a clear danger to society and that to protect society he must be removed from it for many years, standing by themselves, as indicating an intention to impose any sentence longer than any individual offence warranted merely in order to protect society. However, when those remarks are seen in the light of the sentences which followed, it seems to me that his Honour fell into error. 143 His Honour had a most difficult task to perform in imposing sentence for these numerous and serious offences. Notwithstanding the need to recognise the commission of individual offences by appropriate accumulation there was an overriding need to impose a total effective sentence which reflected the totality of the appellant's criminality. In my opinion the several errors which I have identified led his Honour to impose sentences which were effectively excessive. I think that the Court should intervene and re-sentence the appellant. 144 The one remaining ground of appeal complained that the appellant had a justifiable sense of grievance by comparing his sentences with those imposed upon his co-offenders. In the circumstances there is no need to deal with it. 145 My intention is to substitute for each count a sentence which reflects the criminality contemplated by that count and to achieve an overall sentence that reflects the totality of criminality. Once accumulation of sentences is allowed for, there is no circumstance capable of justifying an extension of the parole period at the expense of the non-parole period of the overall sentences. The overall head sentence should be thirty years and the overall non-parole period twenty-two and one-half years. My reasons for departing from the standard non-parole periods are the seriousness, elsewhere explained, of the appellant's criminality in the first and second counts and the need, in imposing sentence on counts 5, 6 and 7, to provide a proper opportunity for parole. 146 I propose the following orders - 1. The appeal against conviction is dismissed. 2. The application for leave to appeal against the sentences is granted, the appeal is allowed and, other than the sentence on the eighth count, the sentences are quashed. 3. The following sentences be and are imposed in lieu of those quashed - Count 1: a non-parole period of eight years commencing on 22 August 2003 and expiring on 21 August 2011 and a balance of term of two years and eight months. Count 2: a non-parole period of sixteen years commencing on 22 August 2008 and expiring on 21 August 2024 and a balance of term of five years and four months. Counts 3 and 4: on each count a non-parole period of fifteen years commencing on 22 August 2009 and expiring on 21 August 2024 and a balance of term of five years. Counts 5, 6, and 7: on each count a non-parole period of nine years and six months commencing on 22 August 2017 and expiring on 21 February 2026 and a balance of term of seven years and six months commencing on 22 February 2026 and expiring on 21 August 2033. 147 HOWIE J: I have read the judgment of Barr J in draft and I agree that the appeal against conviction should be dismissed for the reasons given by his Honour. I also agree with the proposed orders in relation to the application for leave to appeal against sentence. I simply wish to add some comments to the reasons given by Barr J for dismissing the third ground of appeal relating to the admissibility of the audiotape of the police interview with Bonham and statements made by him thereafter. 148 I agree with Barr J that s 43 of the Evidence Act (the Act) does not prevent the admission of a prior inconsistent statement where the witness admits that such a statement was made. There may, however, be other reasons for the rejection of the tendering of the statement, such as a finding that the probative value of the statement in documentary form outweighs its probative value under s 137 of the Act. 149 In the present case the audiotape recordings of Bonham's interviews with the police were admissible as relevant to his credit under s 55 of the Act. The jury was asked to listen to the answering of questions by Bonham as recorded on the tapes to consider whether he was telling the truth at that time or in his evidence in the witness box. Having been admitted for that reason, the tapes could be used by the jury as evidence of the truth of what Bonham said on them under s 60 of the Act. I do not understand that there was an objection to the admission of the audiotapes or the transcripts based upon s 137 or any other section of the Act. 150 Mr Stratton SC, counsel for the appellant, also argued before this Court that, whatever might be the situation with the audiotapes of the interviews, a written statement made later by Bonham was inadmissible by reason of s 66(3) of the Act. It was argued that the statement purported to be an account of what the witness would say in court, Bonham at this stage being willing to give evidence for the prosecution, and, therefore, could not be admitted as hearsay evidence under s 66. No objection was taken to this statement independently from the audiotapes of the interviews and no reliance was placed before the trial judge on s 66(3). 151 When asked what the statement added to the recorded interviews and the transcripts of it which were, in my view, properly before the jury, Mr Stratton answered that it was in effect evidence that Bonham was prepared to continue with his account given in the interviews as at 26 September 2003, that is about a month after the interviews were recorded. Mr Stratton emphasised that the Crown "had a motive" to place this statement before the jury but conceded that the Crown had not explicitly used it to prove that Bonham was still maintaining his original version as at 26 September 2003. Nor was the statement used for this purpose by the trial judge in his summing up. 152 In any event, Mr Stratton agreed that the Crown adduced oral evidence from Bonham that he signed a statement in accordance with his interviews when it was presented to him by the police on 26 September 2003, so the fact that he was still willing to maintain his original version of the involvement of the appellant in the offences on that date was before the jury. 153 Although Mr Stratton submitted that the statement was "powerful evidence", I cannot see how it was. The jury had the taped interviews and the transcripts of them. The fact that they had other documentary evidence of the version of Bonham implicating the appellant made about a month after the interviews seems to me to be neither here nor there. There was no added prejudice by reason of the fact that the statement was in documentary form because the jury had the tape recordings of the same account and transcripts of the recordings. Nor did the fact that Bonham had signed that statement add anything to its weight as evidence of the truth because he also signed a transcript of the interviews containing the same account. 154 In my opinion the statement was inadmissible under s 66(3), but there was not the slightest prejudice caused to the appellant by its admission and it could have had no possible bearing upon the jury's verdicts.

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