Regina v Belal Hajeid

[2005] NSWCCA 262

Court of Criminal Appeal (NSW)|2005-09-16|Before: Studdert J, Bell J, Latham J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2005-09-16

Before

Studdert J, Bell J, Latham J

Source

Original judgment source is linked above.

Judgment (39 paragraphs)

[1]

Regina v Belal Hajeid [2005] NSWCCA 262 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

[2]

JUDGMENT OF: Studdert J at 1; Bell J at 1; Latham J at 1

[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; Count one (detain for advantage - Ms A) a fixed term of imprisonment for five years to date from 20 December 2002. That sentence will expire on 19 December 2007; Count four (assault - Ms A) a fixed term of imprisonment for two years to commence on 20 December 2001 and to expire on 19 December 2003; In respect of counts five, six, seven, eight and nine (aggravated sexual intercourse without consent - Ms A) imprisonment for eleven years to commence on 20 December 2002. These sentences will expire on 19 December 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 19 December 2009; Count two (detain for advantage - Ms B) fixed term of imprisonment for five years to date from 20 December 2005. This sentence will expire on 19 December 2010; Count eleven (assault Ms B) fixed term of imprisonment for one year to date from 20 December 2005. That sentence will expire on 19 December 2006; Count twelve (aggravated sexual assault - Ms B) imprisonment for thirteen years to date from 20 December 2005. That sentence will expire on 19 December 2018. Specify a non-parole period of eight years to date from 20 December 2005. The first date upon which the applicant will be eligible for consideration of release to parole is 19 December 2013

[17]

11 The second offence involving Ms A was common assault. This is an offence provided by s 61 of the Crimes Act and has a maximum penalty of imprisonment for two years (count four). This was the assault in which Ms A was tackled to the ground and kicked by the four men from the red car. It was the Crown case that the applicant was either the tackler or that he was present, aiding and abetting the tackler. He was sentenced to a fixed term of two years' imprisonment for this offence. 12 The applicant was convicted of five counts of aggravated sexual intercourse without consent in which the complainant was Ms A. These offences are provided by s 61J(1) of the Crimes Act and have a maximum sentence of imprisonment for twenty years. The circumstance of aggravation in each case was that the offence was committed in company. In each instance the applicant's liability was as a principal in the second degree, in that he aided and abetted the principal offender by his presence and willingness to assist. For each of these offences the applicant was sentenced to a term of imprisonment of fifteen years. A non-parole period of eight years was specified in each case (counts five, six, seven, eight & nine). 13 The applicant was charged with three offences relating to the complainant, Ms B. The sentences imposed for these offence were concurrent and were fixed to commence on the expiration of the non-parole period specified for the offences involving Ms A. Thus each of these sentences will commence on 19 December 2009. 14 The first offence relating to Ms B was that of detaining her for the advantage of the applicant, his co-offenders and four other men. This was a charge under s 90A and the Judge approached the sentencing of the applicant for it on the basis that the maximum penalty was imprisonment for fourteen years. The period of the detention the subject of the offence was between the time of the assault on Ms A until the applicant left the park. He was sentenced to a fixed term five years' imprisonment for this offence (count two). 15 The second offence that related to Ms B was one of common assault under s 61. This was the incident in which the applicant grabbed Miss B by the arm and pulled her around to the back of the toilet block. He was sentenced to imprisonment for two years for this offence (count eleven). 16 The third count involving Miss B was an offence of aggravated sexual intercourse without consent, pursuant to s 61J(1). The circumstance of aggravation was that the offence was committed in company. The applicant's liability for this offence was as principal in the first degree. This was the incident in which he forced Ms B to fellate him. He was sentenced to a term of fifteen years' imprisonment for this offence. A non-parole period of seven years was specified. The first date on which the applicant will be eligible for consideration of release on parole is 18 December 2016.

[23]

23 The Judge referred to the applicant's age on more than one occasion in the course of his remarks: "However, I do accept that there are special circumstances in this case arising from the age of Hajeid and what I would regard as a previous good character. I do intend to make allowance for this in fixing a non parole period" (ROS 15.3). "The Crown also conceded that the youth of the offender had to be taken into account. I agree, and I have already indicated as to how I intend to take that into account" (ROS 16.3). "He is young and of previous good character and there is nothing in his background to show how he got involved in these offences" (ROS 18.10-19.1). "Because of his age and previous good character, and the prospects of some rehabilitation, I intend to find special circumstances and to reduce the non-parole period" (ROS 24.5). 24 In the applicant's submission the passage at 16.3 above makes clear that his age was only taken into account in determining the length of the non-parole periods. This was said to bespeak error because the factors that are relevant to the determination of the non-parole period are the same factors that are relevant to the determination of the sentence: R v Bugmy (1990) 169 CLR 525. As their Honours made clear in Bugmy, different weight may be given to factors in fixing the non-parole period. 25 At the date of sentence the Judge was required to set the term of the sentence and then to specify the length of the non-parole period. The latter was to be not less than three-quarters of the sentence unless the Judge decided that there were special circumstances for it being less: s 44(2) Crimes (Sentencing Procedure) Act 1999. Although s 44 did not require that the non-parole period bear a fixed proportion to the sentence in the absence of special circumstances (since it was open to the sentencer to impose a non-period that was more than 75 percent of the sentence) it was common for the non-parole period to be three quarters of the sentence. In such cases the factors that bear on the determination of the sentence necessarily bear on the length of the non-parole period and to the same degree. The requirement that a sentencer find that there are special circumstances before specifying a non-parole period that is less than three-quarters of the sentence means that one or more subjective factors may be given greater weight in the determination of the non-parole period than in the determination of the sentence.

[30]

35 The Judge found the applicant's offences to be worse than those in AEM because of the large number of s 61J(1) offences and the "general circumstances of violence, threats and terror" to which he had earlier referred (ROS 22.2). In AEM the two complainants were threatened at knifepoint. On the applicant's behalf it was put that there was no evidence that he had made any threats of violence, nor that he had been present or heard the making of threats by the co-offenders. He was one of four young men who tackled Ms A to the ground and kicked her before one of their number threw her over his shoulder and from there into some bushes. The Judge found these assaults to have been both violent and calculated to cause fear and alarm. He was satisfied beyond reasonable doubt that those involved in their commission intended to achieve a total physical domination of Ms A and to crush any resistance that she might have had (ROS 7.3). The submission that there was no evidence that the applicant made any threats of violence loses its force when regard is had to that finding, which was not challenged. 36 In AEM this Court reviewed the pattern of sentencing for offences of aggravated sexual assault contrary to s 61J(1). The sentences imposed on the respondents to the appeals in that case represented the lowest sentences that could properly have been imposed (at [145]). The Judge's assessment that the applicant's offences were worse than those of the offenders in AEM by reason of their number and that they occurred in the context of degrading assaults upon the two complainants involving eight offenders is one about which minds might reasonably differ. We do not find that his Honour erred in coming to the conclusion that he did. 37 The Judge imposed sentences of fifteen years for each of the s 61J(1) offences. This was submitted to betray error since the applicant's involvement in the five offences involving Ms A was as a principal in the second degree. It was submitted there was no justification for the imposition of sentences comparable with the sentences imposed on co-offenders for offences in which they were being sentenced as principals in the first degree. 38 The Crown submitted that, while the roles of the parties involved in a joint offence is a relevant consideration, there is no universal principle that the culpability of the aider and abetter is less than that of the principal offender justifying a lesser penalty: GAS at [23]; R v Blake [2003] NSWCCA 113. In GAS Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ at [23] observed: "a manipulative or dominant aider and abetter may be more culpable than a principal. And even when aiders and abettors are less culpable, the degree of difference will depend upon the circumstances of the particular case".

[34]

44 The principle of totality in sentencing was explained in Mill v R (1988) 166 CLR 59 per Wilson, Deane, Dawson, Toohey and Gaudron JJ at 62-63: "The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing , 2nd ed (1979), pp 56-57, as follows (omitting references): 'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is `just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.' See also Ruby, Sentencing, 3rd ed (1987), pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred." 45 These offences formed part of a single episode of criminal offending. The circumstance that they involved two victims called for a degree of accumulation. At issue is the question of whether an accumulation of eight years produced an overall sentence that was manifestly excessive. Taking into account the pattern of sentencing for s 61J(1) offences reviewed in AEM, this contention has been made good. An effective sentence of twenty-three years' imprisonment imposed on a young man of prior good character for the totality of this criminal behaviour in our view exceeded the bounds of discretion. The Judge erred in imposing sentences for the s 61J(1) offences that were, at the least, at the top of the range and in then determining to wholly accumulate the sentences for the Ms B offences on the sentences for the Ms A offences. Re-sentencing

[35]

46 It is necessary for this Court to re-sentence the applicant. He did not give evidence in the trial or at the sentence hearing. A report prepared by Ms Duffy, a psychologist, was tendered in his case. The account of the applicant's history is drawn largely from that report. The applicant left school at the completion of Year 11 having performed poorly. He tended to give excuses for this blaming it on external factors such as the quality of teaching at his school. During the course of personality testing he had been inclined to respond before Ms Duffy had an opportunity to complete the question. She observed that it had not been easy to obtain a clear picture of his psychological functioning, as distinct from the impression that the applicant wished to create. His results were below average in intelligence testing on measures of vocabulary and of non-verbal skills. He had brief periods of employment prior to being taken into custody in connection with these offences. He had subsequently been released on bail subject to strict reporting conditions. He had not been employed during that period. 47 Ms Duffy reported by way of conclusion that: "Belal's presentation at our interview and the results of objective personality assessment indicate a person who may reveal a general naivety about psychological matters including a possible deficit in self-knowledge. He would like to present himself as a well functioning individual and is concerned with being seen by others as composed, virtuous and conventional in his behaviour…The general and overwhelming impression of Belal is of a person who is not likely to admit any faults or areas of transgression. He appears to cocoon himself in justifications and rationalisations to bolster his own self esteem. In this way, self exploration would be difficult for him. He would thus be resistant to seeking any counselling or help with any problems" (page 7). 48 A pre-sentence report dated 9 April 2002 was also in evidence. The author reported as follows: "He presented as concerned to leave the best impression he could but was somewhat confused as to how he might do this. The offender claimed to be innocent of these charges and portrays himself as the innocent victim of his co-offender and of the Court. His self-perception is one of an honest individual, and as such, any involvement in these offences would be "out of character". It is noted that in discussion, he had some difficulty accepting responsibility for offences relating to previous convictions. Although articulate and apparently high functioning in other areas, Mr Hajeid's thinking may be somewhat muddled. For example, he had some difficulty with the notion that prior misdemeanours might not support his highly virtuous view of himself. It seems he is strongly motivated to preserve this image of himself" (page 3). 49 The applicant had been dealt with before the Children's Court at Lidcombe in June 1997 and April 1999 for relatively minor offending which did not result in the imposition of custodial sentences. It is appropriate to disregard these matters in sentencing him for these serious criminal offences. For the reasons that we have canvassed in dealing with ground 2, we are not of the view that the applicant's relative youth can allow of a significant moderation in the sentences to be imposed. These offences call for sentences that denounce criminal behaviour of this type and that serve to punish this applicant and to deter him and others from engaging in it. 50 In re-sentencing the applicant it is necessary to apply the provisions of s 44 of the Crimes (Sentencing Procedure) Act 1999 as it stood prior to its amendment by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002. Accordingly, it is necessary to first set the term of the sentence and secondly to set a non-parole period for the sentence. The non-parole period must conform to the proportion specified in subsection (2) unless there are special circumstances for it being less. The Judge found special circumstances. The Crown on the hearing of the application did not submit, in the event of re-sentencing, that this Court would not give effect to that finding. The applicant's youth and the fact that he has not previously been sentenced to a term of imprisonment are special circumstances for the purposes of s 44(2). 51 In our view it is appropriate to distinguish between the s 61J(1) offences in which the applicant was an accessory from the offence committed on Ms B in which he was the principal. In senior counsel's submission the s 61J(1) offence committed on Ms B was not of a serious character for such offences: the preceding assault was of a minor nature; there was no evidence that the applicant knew that Ms B had been sexually assaulted by any of his companions before he sexually assaulted her; he did not threaten her; the assault was one that involved oral intercourse only. 52 In R v O'Donnell (unreported) Court of Criminal Appeal, 1 July 1994, Hunt CJ at CL observed, "Fellatio in my opinion is normally less criminal than say anal or vaginal penetration". Grove J (with whom Howie J agreed) discussed this observation in R v Andrews [2001] NSWCCA 428 at [6]: "His Honour clearly did not intend that statement to reveal some matter of law, indeed in its terms was expressed only as an opinion and he did not suggest that it was axiomatic. With great respect to his Honour, in my view the penetration of a victim by a sexual organ derives its seriousness from a consideration of the particular circumstances of the case rather than from the nature of the sexual act itself. In this particular case, as I have observed, the act was intended manifestly to humiliate and dominate the victim. In those circumstances I would regard what was done as of a very high order of criminality."