GHANEM v REGINA

[2008] NSWCCA 4

Court of Criminal Appeal (NSW)|2007-11-23|Before: McClellan CJ, Hall J, Price J, Clellan CJ

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Court

Court of Criminal Appeal (NSW)

Decision date

2007-11-23

Before

McClellan CJ, Hall J, Price J, Clellan CJ

Source

Original judgment source is linked above.

Judgment (59 paragraphs)

[1]

CITATION: GHANEM v REGINA [2008] NSWCCA 4 This decision has been amended. Please see the end of the judgment for a list of the amendments.

[2]

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Price J at 85

[3]

DECISION: (1) Grant leave to appeal (2) Allow the appeal and quash the sentences imposed in the District Court. In lieu thereof, the applicant is sentenced to the following terms of imprisonment: (a) Count 1 (detain for advantage Ms A - s.90A of the Crimes Act): a fixed term of imprisonment for five years to date from 17 November 2002. That sentence will expire on 16 November 2007. (b) Count 4 (assault Ms A - s.61 of the Crimes Act): a fixed term of imprisonment for two years to date from 17 November 2001. That sentence will expire on 16 November 2003. (c) Counts 5, 6, 7, 8 and 9 (aggravated sexual intercourse without consent Ms A - s.61J(1) of the Crimes Act): imprisonment for 11 years to date from 17 November 2002. These sentences will expire on 16 November 2013. In respect of each of these sentences there will be a non-parole period of seven years. The non-parole period for these offences will expire on 16 November 2009. (d) Count 2 (detain for advantage Ms B - s.90A of the Crimes Act): a fixed term of imprisonment for five years to date from 17 November 2005. This sentence will expire on 16 November 2010. (e) Count 11 (assault Ms B - s.61 of the Crimes Act): a fixed term of imprisonment for one year to date from 17 November 2005. This sentence will expire on 16 November 2006. (f) Count 12 (aggravated sexual intercourse without consent Ms B - s.61J(1) of the Crimes Act): imprisonment for 13 years to date from 17 November 2005. That sentence will expire on 16 November 2018. A non-parole period of eight years to date from 17 November 2005. The first date upon which the applicant will be eligible for consideration of release to parole is 16 November 2013.

[14]

1 McCLELLAN CJ at CL: I agree with Hall J. 2 HALL J: The applicant, by application for leave to appeal dated 26 May 2003, seeks leave to appeal against sentences imposed in the District Court of New South Wales (his Honour Judge Finnane QC) on 11 October 2002. The sentences were imposed following convictions in two separate trials. 3 The first trial related to offences committed on 10 August 2000 at Northcote Park, Greenacre (referred to as the "Greenacre offences"). The victims of the offences were two girls aged 17 and 18 years, they being in their last year of high school. 4 In a second trial, the applicant was convicted of four offences alleged to have been committed by him on 30 August 2000 (referred to as the "Bankstown offences"). 5 Following a re-trial which this Court ordered (Regina v Ghanem & Ors [2004] NSWCCA 36), the applicant was acquitted of the Bankstown charges. 6 The overall aggregate sentence imposed in respect of all of the offences in both trials resulted in terms of imprisonment of 40 years with a non-parole period of 26 years. 7 Mr Game SC, who appeared before this Court for the applicant, succinctly stated the issue to be whether the Court should, in effect, impose the same sentence as was imposed by this Court on the applicant's co-offender, Hajeid, namely, a non parole period of 12 years with a head sentence of 17 years or whether the applicant has established a basis for imposing a lesser non-parole period and a lesser head sentence. 8 The primary submission made on behalf of the applicant was that the appropriate total sentence involved partial accumulation of sentences in respect of the offences against Ms A and Ms B. Whilst the sentencing judge ordered that they be partly cumulative, he effectively made the non-parole periods cumulative. The sentences in respect of the offences against Ms B did not begin until after the expiry of the non-parole period of eight years in respect of the offences against Ms A. 9 The Crown accepts in this appeal that this Court must necessarily re-sentence the applicant due to his acquittal of the Bankstown offences. The critical question, as the Crown observed, is whether there should be a further reduction of the overall aggregate head sentence in respect of the Greenacre matters. 10 The Crown conceded in light of the judgment of this Court in Regina v Hajeid [2005] NSWCCA 262, Grounds 2, 3 and 5 in the present application. Accordingly, it accepted that there must be a further reduction in the sentences imposed, and that, for practical sentencing purposes, the cases of the co-offender, Belal Hajeid and the applicant are indistinguishable.

[22]

The facts 12 The material events may be summarised as follows:- "1. On the evening of Thursday 10 August 2000, the complainants were together browsing in the shops in the mall at Chatswood. Around 9.00 pm, they were approached by a group of eight young men, which included the applicant. They agreed to accompany the young men on the understanding that they would be given some marijuana to smoke at a nearby location and that thereafter they would be given a lift to their homes. They got into a white van with four of the men while the remaining four, including the applicant, got into a red car. Before leaving the car park of the shopping centre, the men in the red car spoke in Arabic with the men in the white van. 2. The two vehicles travelled from Chatswood to Northcote Park, Greenacre. During the course of the journey, the occupants of the white van maintained mobile telephone contact with the occupants of the red car. The white van was the first to arrive at the park. By this time it was after 11.00 pm. The park was an in [sic] isolated location unfamiliar to the complainants. 3. On arrival, Bilal Skaf to Ms A to one part of the park while a co-offender took Ms B to another part of the park. Subsequently, both complainants were sexually assaulted by being forcibly required to engage in acts of oral intercourse with various of the young men. Ms A had been assaulted in this fashion by Bilal Skaf before the red car, in which the applicant was travelling, arrived at the scene. 4. After Bilal Skaf had forced oral sex on Ms A, the four men from the red car ran towards her. One crash tackled her. When on the ground, some of the men kicked her about the legs. One of them picked her up on his shoulder and threw her into the bushes. The applicant was one of those men and he participated in these assaults on her. This led to his conviction on the fourth count on the indictment. The assaults were violent and were found to have caused fear and alarm in Ms A. 5. From this time until he left the area, the applicant jointed his co-offenders in detaining Ms A for advantage and in detaining Ms B for advantage. 6. After Skaf again had oral sex with Ms A a second time, the four men, including the applicant, approached her, threatened her after which she had non-consensual oral sex with four men (including Hajeid and the applicant). 7. Ms B was dragged by a male to the toilet block who had oral sex with her. Later, the four men in the red car surrounded her and demanded oral sex. Hajeid then grabbed her and forced her to have oral sex with him. The applicant, as noted earlier, was convicted of aggravated sexual intercourse with Ms B without consent." 13 The applicant appealed against conviction in respect of the Greenacre offences. That appeal was dismissed on 7 April 2004: Regina v Skaf & Ors [2004] NSWCCA 74. 14 The applicant's successful appeal against the convictions on the Bankstown charges was allowed by this Court on 7 April 2004 and a new trial ordered: Regina v Skaf & Ors [2004] NSWCCA 36. 15 The hearing of the present application was stood over pending the outcome of that re-trial.

[29]

(e) After Skaf had, for the first time, sexually assaulted Ms A, the applicant and others demonstrated the fact of an existing plan to detain and sexually assault Ms A by rushing towards her and physically assaulting and restraining her. 21 The Crown submitted that, had the sentencing judge's exercise been confined only to the 10 Greenacres offences, ignoring the Bankstown matters, his findings in respect of the objective seriousness of the offences and the subjective factors would have been the same. The Crown submitted that the question is not whether the Greenacre matters "affected" the judge's conclusion, but whether he would have come to any different conclusion. 22 It is plain that the many Bankstown offences against Ms A and Ms B involved, as the sentencing judge described it, an organised criminal conspiracy and the acts carried out by the applicant and his co-offenders pursuant to that conspiracy were properly categorised as involving criminality of the highest order for the type of offences in question. That conclusion, in my view, stands, notwithstanding the change in the factual basis associated with the Bankstown matters. 23 The applicant also contended that, had the sentencing judge only had the Greenacre incidents to consider (and not those alleged to have occurred at Bankstown), it is likely that he would not have found the applicant to be "a medium to high risk" of re-offending. It was emphasised in submissions for the applicant that he had no prior criminal history. 24 In the remarks on sentence, the following is recorded:- "He has been assessed by Juvenile Justice officers as falling within the medium to high range risk of re-offending." 25 The sentencing judge then added (p.25):- "I would accept their opinions on this matter in preference to the opinions expressed by Mr John Taylor, psychologist … because the Juvenile Justice report was based on extensive background checks and did not just rely on what the offender said …" 26 The Juvenile Justice report was dated 22 August 2002. It was based on five interviews with the offender and one with his family. The authors of the report had information from the Department of Education, from his previous employer and from the psychologist, Ms Hilton and the Case Manager and Manager Kariong Juvenile Justice Centre. The authors also had the report of Mr Taylor dated 29 July 2002. 27 The risk assessment referred to in the Juvenile Justice report was, in part, made using the Static 99 statistical instrument. On that assessment, the applicant was rated in the medium/high category of sexual offending. Dynamic risk factors were also identified. These included distorted attitudes and beliefs about the offences, an unwillingness to discount the explanation that the victims may have consented and an inability to place appropriate responsibility with the other offenders for their role. It was also noted that the applicant had a poor motivation to address his offending behaviour.

[49]

(e) No non-parole period would be fixed for the sentences imposed on Counts 1, 2, 4 and 11, having regard to the sentences that were to be imposed in relation to the remaining counts in the indictment. 36 I am of the opinion, having regard to the facts concerning the offences against s.61J(1) to which the applicant was an accessory, that the accessorial offences committed by him can only be considered as involving extremely serious offences. I consider that this is similarly reflected with his co-offender in this Court imposing in Hajeid a slightly longer sentence in respect of the count where Hajeid was the principal (13 years with a non-parole period of eight years) compared to those where he was an accessory (11 years with a non-parole period of seven years). 37 In the applicant's supplementary written submissions dated 27 August 2007, it was submitted that the Court should have regard to the decision in Regina v S [2005] NSWCCA 323. The Court, in those proceedings, was composed of the same members as in Hajeid (supra) (Studdert, Bell and Latham JJ). On appeal, the Court re-sentenced S to 16 years imprisonment, with an aggregate non-parole period of 10 years. In respect of offences against Ms A and Ms B, he received a sentence of 10 years with a non-parole period of five years. 38 It was submitted that the degree of concurrency was substantially greater in respect of the terms of imprisonment imposed on S than for offences against Ms A and Ms B than they were for the applicant's sentence or Hajeid's sentence. 39 It was submitted that in light of S's sentence, that parity principles required a further reduction in the applicant's sentence than that given to Hajeid. 40 I do not accept that the sentence as structured and imposed in S (supra) has the effect contended for on behalf of the applicant. Although the offences committed by S involved both Ms A and Ms B, there is not otherwise a sufficient similarity which would warrant a further reduction in the applicant's sentence. 41 S was charged and convicted of six offences arising out of the detention and sexual assault of the two complainants on 10 August 2000 whilst S was in the company of a number of his co-offenders. 42 Counts 1 and 2 of the indictment against S charged him with detaining Ms A and Ms B for advantage contrary to s.90A of the Crimes Act. Counts 3, 4 and 5 on the indictment each charged S with one count of aggravated sexual assault contrary to s.61J of the Crimes Act. S was a principal in respect of Count 3 involving Ms A and he was an accessory in respect of Count 4 which also involved Ms A and he was an accessory in respect of Count 5 which involved Ms B. There was a sixth count involving a charge of robbery in company. 43 In contrast, in the present proceedings, the applicant was convicted in respect of five offences of aggravated sexual assault with Ms A without consent under s.61J of the Crimes Act of which he was principal in respect of Count 9. There were other differences, as emphasised in the Crown's oral submissions. S was seven months younger than the applicant and the Court had regard to S's deformity and his lack of self-esteem and poor social skills associated with that deformity. S also pleaded guilty and obtained a 25% discount on sentence. Additionally, the sentencing judge took into account remorse in stating "I am entitled to consider that he is in the process of working through remorse and contrition …". 44 I am, accordingly, of the opinion that the sentences imposed in S (supra) are not relevant in applying the parity principles to this application. I will return below to express my conclusion in respect of Grounds 2 and 3.

[51]

Ground 5: The sentence is manifestly excessive 48 In the applicant's written submissions, it was stated:- "These offences were committed by a child with no criminal antecedents and with presently good character. They arose out of one incident. In these circumstances, the applicant submits that a sentence of 23 years with a non-parole period of 15 years is manifestly excessive. Hajeid (supra) at [45] is authority for that proposition." 49 In the course of his oral submissions, Mr Game SC submitted that the Court should approach the case on the basis of the factual findings in relation to the sentencing on Ms A and Ms B, but none of the findings by the sentencing judge in relation to overall culpability. This submission raises the matter considered and dealt with in relation to Ground 1 and, for the reasons there stated, the submission should be rejected. 50 In relation to the approach this Court should take in re-sentencing the applicant, reliance was placed upon evidence tendered at the hearing of the application. This included a "Background report" by Greg Robertson, Sex Offender Counsellor, Department of Juvenile Justice dated 20 November 2007. The report was marked as Exhibit 1 in the application. 51 Mr Robertson stated that the applicant was interviewed for approximately 1.5 hours on both 10 and 11 October 2007. During the interviews on those dates, the applicant maintained his denial of being involved in the matters before this Court. Mr Robertson stated in this respect:- "… he did not demonstrate any acceptance of responsibility for the offences, and verbalised thoughts that would suggest that he felt as though he is the victim in the current legal matters …" 52 The applicant's denial of responsibility, it was noted, was also recorded in a previous background report completed in August 2002. The applicant claimed at that time he had been wrongly identified by the victim. 53 Exhibit 1 recorded that a few days prior to the hearing of this application for leave to appeal, Mr Robertson was informed that the applicant wished to meet him to talk further about his assessment. This contact occurred on 19 November 2007 and, by reason of Mr Robertson's other commitments, arrangements were made for him to speak to the applicant by phone on 20 November 2007. He recorded in Exhibit 1 (p.4):- "When speaking with [the applicant's] solicitor … it would appear that over the past 6 weeks since the initial assessment [the applicant] has had time to reflect upon the discussions during the interview with the writer. [The applicant] is now contemplative of change and has become more open and honest about the feelings in which he has been internalising over the past 7 years relating to the offences … Since the writer's initial assessment of [the applicant] on 10.10.07 and 11.10.07, [the applicant's] motivation to seek treatment and acceptance of responsibility for the offences and feelings of remorse have progressed. He is now demonstrating a general level (sic) remorse and empathy for his victims and has become more reflective and accepting of responsibility for his involvement in the matters before the Court. It appears there has now been a positive shift in [the applicant's] thinking and feelings associated with his offending behaviours." 54 The reported change in attitude of the applicant comes against almost five years of persistent denial of any responsibility. That attitude had not changed when he was interviewed as recently as 10 and 11 October 2007. There was no reference in the report to the actual words in which the applicant expressed himself to Mr Robertson by phone on 20 November 2007, although parts of his statement on these matters to Mr Watson-Munro on a review conducted on 15 November 2007 are recorded in Exhibit 2 (report dated 20 November 2007, p.2). 55 In the circumstances of the history in this case, plainly caution should be exercised in accepting that the applicant has genuinely and permanently changed his attitude and reversed the strong denials he had consistently made. It appears that it was the recent telephone call from the applicant that led Mr Robertson to express the view that the applicant genuinely wished to move forward and engage in therapeutic treatment. Mr Robertson expressed his view that the applicant could greatly benefit from counselling treatment specific to the nature of the offences. This, he said, would encourage and invite him to take full responsibility for his behaviour and challenge any distorted attitudes and beliefs specific to the offences. 56 In recommending that a longer period of parole and a shorter period of imprisonment be considered, Mr Robertson relied upon the applicant's recent statements to him as well as the absence of prior convictions and criminal behaviours during adolescence and there being no reported history of drug or alcohol use as well as the history of previous stable employment and family support. 57 The applicant tendered two reports of Tim Watson-Munro, consultant forensic psychologist dated 27 August and 20 November 2007 (Exhibit 2). In his first report, Mr Watson-Munro noted that the applicant maintained his innocence in relation to the convictions but that he had nonetheless developed some insight into the trauma that had been experienced by the victims. He noted that the applicant's early developmental years were uneventful and that there were no indications of behavioural disturbance or conduct disorder during his formative years. He recorded that the applicant expressed empathy for the victims and general abhorrence at the type of crime and that he was prepared to embark upon a treatment course such as the CUBIT programme as a condition of his eventual release into the community. Mr Watson-Munro concluded:- "The broad spectrum of his symptoms is consistent with a diagnosis of an Adjustment Disorder, according to DSM-IV criteria. He considered him well motivated and insightful who, with an appropriate support structure and supervision, would manage to overcome his difficulties." 58 In relation to the issue of recidivism, Mr Watson-Munro stated that he was encouraged by the absence of prior convictions, an absence of behavioural disturbance during his adolescence, his insights into the punishment that has been imposed and his willingness to undertake treatment when offered. 59 In his report dated 20 November 2007, Mr Watson-Munro stated that "it would appear" through conversations with Mr Robertson that the applicant had now come to accept responsibility for his wrongdoing. 60 Mr Watson-Munro noted the applicant's reported change in attitude and that he found him to be insightful and remorseful which is said to have been reflected by his application for entry into the CUBIT programme. He stated that the applicant required continuing supportive psychotherapy to help reinforce the progress made to date. He considered that he would respond well to involvement in the CUBIT programme when the opportunity eventually arises. 61 Finally, by way of further evidence on this application, Mr Game tendered a letter from a Mr and Mrs Harb dated 27 August 2007. They state in the letter (Exhibit 3) that the applicant worked in their business for just under two years (2 September 2001), that they were satisfied with his work attitude and that the applicant was a hard worker and easily accepted directions. They were aware of the applicant's involvement in the present case and his current situation and affirmed that they would offer the opportunity of full-time employment to him. 62 The evidence on this application (Exhibits 1 and 2), which report on the applicant having experienced for the first time since (in the period October to November 2007) feelings of remorse and having become more accepting of his responsibility must be treated, as earlier stated, with some care in determining whether his previously assessed risk of re-offending and rehabilitation prospects have, in fact, materially altered. There was no affidavit evidence on the application from the applicant by which this Court can evaluate for itself the basis and steps by which any change has occurred, the genuineness of his statements to Mr Robertson and to Mr Watson-Munro and the likelihood of a real and lasting attitudinal change. Against a long history of denial of responsibility by the applicant, I do not consider that the evidence in Exhibits 1 and 2 can be said to require a conclusion other than the risk of re-offending being other than as previously made, namely, as a medium to high risk. 63 Returning to Grounds 23 and 3 and in relation to Ground 4 and the matters to which reference has been made above, I am of the opinion that the overall sentence and non-parole period should be the same in relation to the application as was imposed by this Court in Hajeid (supra).

[54]

(b) to facilitate the rehabilitation of serious sex offenders. 66 The Act defines a serious sex offence, inter alia, as meaning an offence under Division 10 of Part 3 of the Crimes Act 1900. Accordingly, the offences under s.61J of which the applicant was convicted fall within the definition of a serious sex offence under the Act. 67 In the Crown's written submissions dated 27 November 2007, it is stated that an application by the Attorney General under the Act would be preceded by an initial recommendation from the Department of Corrective Services. The Department may do so after having conducted an assessment of both static and dynamic risk factors. 68 The Crown has observed that there is no evidence before the Court as to the practice of the Attorney General in relation to cases that may be subject to an application but that if the process under the Act is triggered, in the first instance by a score of at least 6 on the Static-99 statistical methodology (this being the minimum score to be classified as "high risk"), this fact alone is not sufficient. There would need to be other evidence that the offender is likely to commit a further serious sex offence. The Crown has submitted that, in the present case, the applicant fell below this range into the "medium-high risk category" on the Static-99. On the basis that, if the applicant were to receive the same non-parole period as Hajeid (of 12 years), then the applicant's non-parole period would expire in another five years (on 17 November 2013). 69 As the Crown correctly observed, there would be an opportunity for the applicant to improve in terms of dynamic indicators which may reduce his risk of re-offending. That, if it occurred, would render an application under the Act even more unlikely. 70 The matters to which reference has been made in relation to the fourth ground above renders it difficult to predict what the likely rehabilitation prospects for the applicant might be. Furthermore, as the Crown has observed, there is no assessment before this Court establishing that the applicant is, at the present time, a high risk sex offender and that the evidence indicates that he is not. 71 The Crown, accordingly, pointed to the evidence that points against the ability to assess the impact any future application under the Act could have and that there is no basis upon which a prediction can be made as either to the likelihood of any application by the Attorney General nor of the chances of success should such an application be made. Rather, the Crown has submitted that, if on the basis of present information, the Court were to attempt a prediction, then that would point to the conclusion that an application under the Act in this case is unlikely. 72 The Crown has also, with respect, correctly observed that any application made at a future point in time under the Act is not relevant in the determination of the appropriate non-parole period. In such a determination, the sentencing court is not concerned with an offender's prospects of rehabilitation. The court on re-sentencing would be concerned with determining a non-parole period for the purposes of deterrence: Power v The Queen (1974) 131 CLR 362; Regina v Simpson [2001] NSWCCA 534. 73 The applicant's further supplementary submissions dated 30 November 2007 are to the same effect in relation to this last-mentioned aspect (see paragraph [14]). 74 The applicant submitted, however, that when setting a non-parole period or a head sentence, a sentencing court may, in some circumstances, have regard to the possibility of actions by the Executive. In this respect, reference was made to Hoare v The Queen (1989) 167 CLR 348 (the fact that a prisoner could be accredited by prison authorities with remissions was held to be something that the sentencing court could have regard to under s.302 of the Criminal Law Consolidation Act 1935 (SA). The Court stated that the possibility that a prisoner might ultimately spend less time in prison as a result of Executive decisions, could not result in the imposition of a longer sentence, but the court could still have regard to how the scheme worked. Mr Game also referred to Radenkovic v The Queen (1990) 170 CLR 623 (concerning the issue of when re-determining a sentence following legislative change in the sentencing regime, it was appropriate to have regard to parity with other offences of persons who had been sentenced before the new legislation came into force). 75 Mr Game submitted that the Act could be relevant to a sentencing court setting a sentence in circumstances to which the principle in Veen v The Queen (No 2) (1987) 164 CLR 465 applies. He submitted, in this respect, that the fact that the Attorney General could apply for a continuing detention order under the Act may effect the sentencing court's decision. He stated in that respect that the need to protect society is effectively neutralised by the fact that, at the time the offender is due to be released, the prison authorities and the court may assess whether the offender remains dangerous to the extent that it is necessary to continue detention or other supervision (paragraph [17] of the applicant's further supplementary submissions). 76 Mr Game also submitted that the fact that the Attorney General may cause the Supreme Court to re-visit the question whether an offender is likely to commit a further serious sex offence may be relevant to the way in which rehabilitation is taken into account when setting the non-parole period and the head sentence. He submitted that, given that an offender is unlikely to be released until she or he is judged to be likely to commit a further serious sex offence, the sentencing court may begin by taking a guarded but optimistic view of the prospects of rehabilitation in the knowledge that another court will consider the question with the benefit of further evidence. 77 Finally, Mr Game submitted that it was impossible to predict with any certainty whether the Attorney General would make an application under the Act and to determine the outcome of any such application. He observed, however, that there was at least a possibility that the applicant may be kept in custody beyond the expiry of the non-parole period and the head sentence and that that possibility may justify a reduction in the overall non-parole period and head sentence. 78 In the circumstances of the present case, and in particular, having regard to the fact that, on the evidence, it cannot be concluded that an application under the Act is likely, I do not consider that this is a case in which the possible impact of the Act falls for determination. 79 Accordingly, I am of the view that this Court should re-sentence the applicant in accordance with what has is stated in paragraph [83].

GHANEM v REGINA

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