Ground 1: His Honour erred in imposing the maximum available statutory sentence in circumstances that did not constitute the worst class of case
35 As previously noted, the maximum penalty for an offence against s 61J of the Crimes Act is twenty years imprisonment. The judge imposed upon the applicant the maximum penalty for each of the nine counts of aggravated sexual intercourse arising from the events of 10 August 2000 and the judge also imposed upon him the maximum penalty for each of the two counts arising under s 61J concerning the events of 30 August 2000.
36 It is to be noted that none of the offences against s 61J of which the applicant was convicted arising from the events of 10 August 2000 involved penetration of either complainant's vagina. Each offence charged for 10 August 2000 concerned an act of oral intercourse. The applicant forced Ms A to have oral intercourse with him, this activity being interrupted by the arrival of the second car load of offenders. The activity was resumed after Ms A had been assaulted and thrown into the bush. Following resumption, the applicant persisted in oral intercourse until he ejaculated into Ms A's mouth. The applicant also committed an act of oral intercourse with Ms B in the circumstances previously outlined. However, the remaining offences against s 61J for which the applicant was sentenced concerning the events of 10 August 2000 were crimes concerning which others were principals in the first degree and the applicant was a principal in the second degree.
37 During the course of the crimes committed against Ms A, one of the offenders, not being the applicant, produced a knife, but when he did so another offender told him to put it away, and the possessor put it back in his pocket.
38 Each of the offences against s 61J committed on 10 August 2000 was a serious offence committed at night on a school student in a lonely location, and apart from the two complainants there were eight young men involved. Section 61H defines sexual intercourse as including various activities but it does not follow that every class of sexual intercourse is necessarily to be equated. In Ibbs v The Queen (1987) 163 CLR 447 it was determined that the maximum penalty was reserved for the worst type of case constituting sexual intercourse and not for the worst class of case falling within each of the categories of sexual intercourse defined in the equivalent provision of the West Australian Criminal Code to s 61H. In their joint judgment in Ibbs, Mason CJ and Wilson, Brennan, Toohey and Gaudron JJ disapproved (at pp 451-452) observations in R v Ginder (1987) 23 A Crim R 1, referring in particular to what Burt CJ said in that case at p 4:
"In his judgment in Reg. v Ginder (1987) 23 A Crim. R, at 4. his Honour [Burt CJ] had said that in fixing the sentence in a particular case -
' ... it should not be supposed that one means of sexual penetration, divorced from the circumstances, is more heinous than another. To make that distinction would, I think, be to hark back to notions which have, by the reforming Act, been abandoned.'"
39 Their Honours proceeded in considering the judgment under appeal in Ibbs:
"Smith J cited this passage from Ginder in stating his reasons for refusing leave to appeal against sentence in the present case. It appears that the majority regarded the Chief Justice's judgment in Ginder as stating a principle which should govern the fixing of sentences for offences of sexual assault. Although neither that judgment nor the judgments in this case suggest that the particular facts of each case are to be disregarded, the judgments appear to adopt as a sentencing principle the proposition that, 'divorced from the circumstances' (4), each kind of sexual penetration as defined in s 324F is neither more nor less heinous than another. That proposition cannot be accepted. The maximum penalty prescribed for the offence of sexual assault is reserved for the worst type of case falling within s 324D: Reg. v Tait and Bartley (1979) 46 FLR 386, at p 398; 24 ALR 473, at p 484.; Bensegger v The Queen [1979] WAR 65, at p 68.. The maximum penalty is not prescribed as an appropriate penalty for the worst type of case falling within each of the respective categories of sexual penetration described in s 324F. The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined…"
40 In the present case, the task of the judge was to determine where the facts pertaining to the various acts of oral intercourse lay in a spectrum at one end of which lay the worst type of sexual assault falling within the definition of sexual intercourse (adopting the language of the members of the court in Ibbs).
41 Without minimising the gravity of the offences committed on 10 August 2000, they cannot individually or collectively be regarded as in the worst category of aggravated sexual assault for the purposes of s 61J.
42 Indeed, the Crown acknowledged in the course of submissions that there was error by the judge in imposing a sentence of twenty years imprisonment in respect of each of the offences concerning which he was a principal in the second degree. That acknowledgement is consistent with the following passage in the remarks on sentence where his Honour said (ROS 26):
"He [that is Bilal Skaf] was the ringleader. When he had actual intercourse with Miss A and Miss B he should be regarded as an offender of the worst type and in respect of each of those offences he should get the maximum sentence of twenty years. In respect of the offences of sexual intercourse without consent committed by others, he should get fifteen years on each matter…"
43 In the above passage his Honour correctly recognised that it was inappropriate in this case to impose the same sentence upon the applicant for those offences under s 61J where he was not a principal of the first degree. However, when he did proceed to impose sentences, for whatever reason, sentences of twenty years were imposed and not sentences of fifteen years.
44 The Crown submitted that this matter could be remitted to the District Court to enable the judge to correct the sentences pursuant to s 43 of the Crimes (Sentencing Procedure) Act. This Court does not consider that that would be an appropriate course even if s 43 was to be considered to be wide enough to enable the revision by the sentencing judge in the present circumstances. This Court does not consider it necessary to determine that question. The applicant is entitled to have this Court consider his appeal and all the grounds which have been argued.
45 Dealing with the two counts under s 61J concerning Ms A in which the applicant offended as principal in the first degree, the earlier of the two acts occurred before the arrival of the men in the second vehicle. The Crown submitted that it was arguable that this was a proper offence to attract the maximum penalty but this Court does not accept that submission. The second of the activities in which the applicant was directly engaged with Ms A was more serious than the earlier one because of the immediate presence of so many other people and because it ended with the applicant ejaculating into the mouth of Ms A. Nevertheless, having made this distinction between the substance of count 3 and the substance of count 5, this Court does not consider when the test addressed in Ibbs is applied, that either of the acts of oral intercourse committed by the applicant against Ms A could be regarded as fitting into the worst category of case. The same conclusion is inescapable when considering the only count under s 61J in which the applicant's criminality concerning Ms B was that of a principal in the first degree.
46 Turning to the offences committed on 30 August 2000, there were two offences under s 61J, the first being the offence of digital penetration of Ms C's vagina and the second being the offence of penile penetration. Each offence was a very serious one but neither of them could properly be regarded as being within the worst category. Once again, the Court stresses this is not a decision that is intended to minimise in any way the gravity of what the applicant did. The earlier incident in the car of digital penetration was committed not only in the presence of but in conjunction with similar activity by the other male in the back seat. A very serious view has to be taken of that offence for sentencing purposes but it is not an offence for which a penalty of twenty years imprisonment was appropriate.
47 The same conclusion has to be reached concerning the act of penile penetration committed whilst Ms C was a captive in the back seat of the car.
48 Mr Stratton referred to a number of decisions involving very serious crimes of sexual intercourse without consent which were not categorised as fitting into the worst case category: R v Boatswain (unreported, NSWCCA, 15 December 1993); R v Roberts (unreported, NSWCCA, 8 August 1994); R v Presta [2000] NSWCCA 40; R v AEM & Ors [2002] NSWCCA 58.
49 In R v Boatswain the offender pleaded guilty to seven counts of aggravated sexual intercourse without consent and to other offences. The aggravated sexual intercourse offences concerned two different victims on different occasions. The first victim was a fifty year old widowed doctor. The offender forced his way into her house and tied the doctor to a bed. At knifepoint he forced her to engage in fellatio, cunnilingus, sodomy and vaginal intercourse. The victim was left by the offender tied to the bed after the offender had urinated on her. The second victim was a thirty-year old woman, and again the offender entered her house. The offender produced a knife and threatened to kill the complainant. He penetrated her vaginally and anally and compelled the complainant to perform fellatio on him. The overall sentence imposed was a term of twenty-three years with a non parole period of fifteen years, and there was no Crown appeal.
50 Roberts was a case in which the offender was convicted of nine offences after trial. He forced a thirty-nine year old woman at knifepoint into her own home where he raped her orally, vaginally and anally. He left her naked and bound after urinating on her. He had a record of prior serious sexual assaults. He was sentenced to a minimum term of eleven years and an additional term of three years, and on appeal his sentence was reduced to a minimum term of ten years and an additional term of three years.
51 Presta was a case in which the offender pleaded guilty to twenty-one counts of aggravated sexual assault and five counts of kidnapping. His five victims were young men, two of them being aged fifteen years. In each case, the offender abducted the victim at gunpoint. Most of the victims were tied up or drugged. One victim had a bottle and a baton inserted into his anus and another victim had a baton inserted into his anus. The offender urinated into the latter victim's mouth, whipped him with a leather belt and burnt him with a cigarette. A third victim was threatened with circumcision and each victim was subjected to multiple sexual assaults. The offender appealed against a total minimum term of fourteen years three months and an additional term of four years nine months. His appeal was dismissed, but it is to be observed that there was no Crown appeal.
52 In AEM the victims were two sixteen year old females who accepted an offer to be driven home early one morning after they had missed the last train. The offenders took them to the home of AEM Snr and they were forcibly detained there for a period of four hours and were subjected to serious sexual assaults. Each offender pleaded guilty to two counts of aggravated sexual intercourse without consent with a number of other offences of the same type placed on a Form 1. In the commission of the offences AEM produced a knife. One of the victims protested she was a virgin and was menstruating, and each of the men had vaginal intercourse with her. She was forced to perform fellatio on a number of occasions. A knife was produced against the other victim detained in another room and two of the offenders had vaginal intercourse with her. AEM was sentenced to six years imprisonment with a non parole period of four years; KEM was sentenced to five years seven months imprisonment with a non parole period of three years six months; and MM was sentenced to six years imprisonment with a non parole period of four years. On a Crown appeal, AEM's sentence was increased to a total sentence of thirteen years with a non parole period of nine years; KEM's sentence was increased to fourteen years with a non parole period of eight years; and MM's sentence was increased to thirteen years with a non parole period of ten years.
53 It was submitted on the applicant's behalf that consideration of the cases above reviewed reinforces the submission that neither of the s 61J offences which the applicant committed on 30 August 2000 was in the worst category of case. It was submitted that for an offence to be regarded as belonging to the worst class of case, the Court would require that there be some additional element or elements such as torture, or the infliction of bodily harm, or the performance of degrading acts such as urinating on the victim.
54 It would be both undesirable and inappropriate to seek to define the requirements of the category of the worst class of case. Plainly, it is not necessary for a case to so qualify that the conclusion be reached that it would be impossible to conceive of a worse case. However, more is required than that the case be regarded as a very serious one.
55 The Court here regards the offences committed by the applicant against s 61J on 30 August 2000 as most serious offences but neither such offence could be regarded as the worst class of case, so as to attract the maximum penalty for which s 61J makes provision.
56 Ground 1 has been established.