3 In due course the car parked in a parking area beside Gosling Park. The two men in the front seat got out, leaving Mohammed Skaf alone with the complainant. He commenced making sexual advances towards her, but she rebuffed him and he desisted. He then left, and Ibrahim got into the car and also started making sexual advances towards her. She again resisted, and eventually she got out of the car. While she was out of the car, a white van pulled into in the carpark, followed shortly behind by a blue car. Eight men got out of the white van and three more from the blue car. They were obviously known to Ibrahim, who went over and talked to them. The driver of the white van was Bilal Skaf. He came over to the complainant and introduced himself as "Sam's brother Sam". He asked her if she would like to go for a walk. She declined, saying that she was waiting for Sam. He insisted, and after a little while he grabbed her beneath her hair and called out "Allah, boys Allah." At that point some of the other men came over and assisted Bilal Skaf dragging the complainant across the park. They reached a point near a pump shed, where she was placed on the ground. There she was held down by several of the men and part of her clothing was removed. The complainant was crying and screaming and trying to escape. Bilal Skaf said "this one is a feisty one", and then proceeded to have sexual intercourse with her whilst she was being held down This constituted the first charge of aggravated sexual assault.
4 After Bilal Skaf had finished, another man came over saying "it's my turn now", and proceeded also to have sexual intercourse with the complainant. This constitutes the second offence charged against Bilal Skaf, he being there as an aider and abettor.
5 During all this time, according to the complainant, the men were standing around laughing and talking in their own language. After the second act of sexual intercourse, one of the men placed a handgun against her head. The same man kicked her in the stomach. At that stage she was in grave fear for her life. She got up and ran extremely fast across the park and through the parking area where the three vehicles had been left.. She could hear the men running after her. One of them, a man with a ponytail, tried to lure her into the white van. She kept on running and finally reached a phone box on the corner diagonally opposite the car park. She picked up the telephone but she did not know who to ring, as she did not want her mother to see her in that state. At this point the man with the pony tail approached in the white van. He had a gun underneath his jacket and he commanded that she get into the van. The complainant refused. She was screaming throughout this time. Fortunately for her another man, a stranger, came up to her at that point, and the man with the pony tail left. The newcomer, Mr Anderson, took the complainant to his nearby apartment where the complainant telephoned her then boyfriend who later came and collected her. Whilst she was at Mr Anderson's apartment, she received a call on her mobile phone. It was from Mohammed Skaf, who asked where she was and told her that he would come and pick her up and take her home. The complainant forcefully declined. Shortly afterwards her boyfriend arrived and took her back to her home. The next day she told her mother that she had been sexually assaulted and two days later she went to the police. In the meantime she received an SMS message from Mohammed Skaf saying that he had got into a "punch-up" because of what had happened to her.
6 It was not until February of the following year that the complainant identified Bilal Skaf as her principal assailant. He was already in custody at that stage, having previously been charged in relation to two other very serious incidents of multiple sexual assaults which also took place in August 2000.
7 On 13 March 2001 a record of interview was conducted with Bilal Skaf in relation to the complainant's allegations. He declined to answer any questions about the matter. However, he later asked to be re-interviewed, and on 3 April 2001 a further record of interview took place. The police had by then obtained records of mobile telephone use on the evening of 12 August 2000, which showed a number of calls between the mobile telephones belonging to Bilal and Mohammed Skaf within the period leading up to the assaults upon the complainant. Bilal Skaf sought to explain at least some of these phone calls, saying that his cousin Ali was using his, Bilal's phone to talk to Mohammed. The jury's verdict shows that it rejected this version.
8 Mohammed Skaf was interviewed by the police on 14 March 2001. At the time he was still only seventeen years old, and the interview was conducted in the presence of his father and his solicitor. He denied any knowledge of the incident and said that he did not want to be interviewed about it. Accordingly the matter was taken no further.
9 Both offenders were then charged with the present offences. In due course they were committed for trial and a joint trial took place in the District Court before Judge Finnane and a jury. On 11 July 2002 the jury returned verdicts of guilty on all counts. Judge Finnane sentenced both offenders to lengthy terms of imprisonment. Subsequent events make it unnecessary to itemise these sentences here.
10 Both offenders appealed against their convictions and on 6 May 2004 the Court of Criminal Appeal quashed their convictions and ordered a new trial of all charges.
11 The re-trial of the offenders was listed for mention and a trial date was initially set for February 2005. However at that stage the DPP announced that, because of material received from the complainant as to the traumatic effect upon her of the events thus far, he had determined not to proceed with the charges. A media outcry ensued, and in May 2005 new provisions were inserted into the Criminal Procedure Act 1986, enabling the victim's evidence in the retrial of a sexual assault case to be given by tendering her evidence from the previous trial. Following this, the DPP determined that the re-trial against the two offenders would proceed, using these amendments.
12 This was, in fact, how the trial before me was conducted. There was no audio or visual recording of the complainant's evidence in the previous proceedings Accordingly, the transcript of her evidence was tendered, being the best available record of the evidence previously given by her. Rather than have the transcript read to the jury by a single person, it was read by two representatives of the DPP, one as questioner and the other as witness. The whole process, at least to my observation, went very smoothly.
13 Neither Bilal nor Mohammed Skaf gave evidence at their trial. Mr Zarah SC, on behalf of Bilal Skaf, challenged the complainant's identification of him as her principal assailant. Mr Mathew Johnston of Counsel, on behalf of Mohammed Skaf, urged that there was insufficient evidence of his prior knowledge that the complainant was to be sexually assaulted, to make him an accessory before the fact.. The jury's verdicts of guilty on all counts indicates that it found against the defence on all relevant issues.
14 At this point I should return to the other convictions recorded against the offenders as a result of which both of them, particularly Bilal Skaf, are currently serving long terms of imprisonment.
15 The trial relating to the present offences was the third trial conducted by Judge Finnane involving the offender Bilal Skaf, and relating to events which took place in August 2000. At the end of the first trial, on 20 December 2001, Bilal Skaf was convicted of two counts of detain for advantage, nine counts of aggravated sexual intercourse without consent (in company), and two counts of assault. All these charges related to events which took place on 10 August 2000. There were two victims on that occasion, both of them year twelve students who were taken by eight men, including Bilal Skaf, to Northcote Park, Greenacre where they were forced to participate in numerous acts of oral sex. Bilal Skaf himself had oral sex with both complainants. The other charges of sexual intercourse related to offences committed by other men, he being there as an aider and abettor.
16 As a result of these convictions, Judge Finnane imposed sentences aggregating thirty years imprisonment, with an effective non-parole period of twenty years.
17 The second trial took place between 29 April and 7 June 2002. This trial related to events which took place on 30 August 2000. Both Bilal and Mohammed Skaf were involved on this occasion. Bilal Skaf was charged with one count of detain for advantage, two charges of aggravated indecent assault (in company), two charges of aggravated sexual intercourse without consent (in company) and two charges of perverting the course of justice. Mohammed Skaf was charged with two offences of detain for advantage and two offences of aggravated sexual intercourse without consent (in company). Both Bilal and Mohammed Skaf were convicted by the jury of all charges. Bilal Skaf was sentenced to terms of imprisonment aggregating twenty-six years commencing in 2021 and expiring in 2047. An effective non-parole period of ten years was specified. Mohammed Skaf was sentenced to aggregate terms of imprisonment of twenty-five years with a non-parole period of twelve years. In sentencing him, Judge Finnane took into account four further charges under Form 1.
18 Both offenders appealed against the sentences imposed by Judge Finnane. On 26 July 2005 the Court of Criminal Appeal allowed Mohammed Skaf's appeal, and substituted sentences aggregating nineteen years with a non-parole period of eleven years. His current head sentence is due to expire on 31 December 2019 and his non parole period on 2 January 2012.
19 On 16 September 2005 the Court of Criminal Appeal allowed Bilal Skaf's appeal and quashed the sentences imposed by the District Court. In lieu thereof Skaf was sentenced, in relation to the events of 10 August 2000, to an aggregate term of eighteen years, expiring on 11 February 2019, with a non-parole period of fourteen years and three months, expiring on 11 May 2015. In relation to the events of 30 August 2000, the court imposed sentences aggregating seventeen years, which were concurrent as to seven years with the previously imposed sentences, and cumulative as to ten years. An additional non-parole period of seven years and nine months was imposed.
20 The result is that Bilal Skaf was sentenced, on all matters, to a total of twenty-eight years imprisonment, expiring on 12 February 2029. His non-parole period, of twenty-two years, will expire on 11 February 2023.
21 He has also been sentenced to nine months imprisonment for a separate offence of stealing a motor vehicle. I will be returning to this shortly.
22 I turn now to discuss the personal situation of the offenders, and the sentencing considerations in relation to each of them, commencing with Bilal Skaf.
23 Bilal Skaf was born on 14 September 1981 and was less than nineteen years old when these offences were committed. His previous brushes with the law other than the events in August 2000, related to minor matters only which were dealt with by way of fine.
24 The only information relating to his childhood and background come from a psychiatric report of Dr William Lucas who interviewed him for about two hours in July 2005. This material shows that Bilal Skaf is of Lebanese origin. He described his childhood to Dr Lucas as "a bit rough". He had behavioural problems during his youth which ultimately led to his being expelled from school. At the time of his arrest he was working as a customer service attendant with the Railways where his father was a long term employee, and was engaged to a woman of Lebanese origin. The engagement has since terminated.
25 As soon as he went into custody, Bilal Skaf was put into protection. The nature of the charges against him placed him at risk from other prisoners. He is currently serving his sentence in the Goulburn Correctional Centre where he has spent much of his incarceration in the High Risk Management Unit. He is classified as an extremely high risk inmate, which means that he spends most of his time in segregation and is deprived of any educational opportunities whilst in gaol. His lack of access to educational opportunities is of particular concern to him. He sees education and further training as an important part of his rehabilitation, given the very long time that he will be in custody. He has also found his segregation extremely difficult, and has made several complaints to the Ombudsman's Office about these matters, but with no discernible results.
26 Dr Lucas noted a number of health problems suffered by Bilal Skaf since going into custody. He suffers intermittent problems with breathing which is being treated as asthma. He has had chest pain and palpitations as well as gastro-oesophageal reflux and he has a long standing complaint of back pain due to a spinal deformity. He periodically suffers from depression and has been on anti-depressants for some of his incarceration.