REGINA v Bilal SKAF; REGINA v Mohammed SKAF

CATCHWORDS : Criminal law - Bilal Skaf - aggravated sexual intercourse without consent (in company) - Mohammed Skaf - aiding and abetting the principal offence committed by Bilal Skaf

LEGISLATION CITED : Crimes Sentencing Procedure Act 1999

REGINA - Crown PARTIES : Bilal SKAF - Offender REGINA - Crown Mohammed SCAF - Offender

Ms P Adey - Crown COUNSEL : Mr P Zahra SC - Offender Bilal Skaf Mr M Johnston - Offender Mohammed Skaf

S C Kavanagh - Crown SOLICITORS : S E O'Connor - Offender Bilal Skaf W O'Brien - Offender Mohammed Skaf

LOWER COURT FILE NUMBER(S) : 01/11/0750; 01/11/1188; 01/11/0901; 01/11/0591

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

2005/1401 REGINA v Bilal SKAF 2005/1402 REGINA v Mohammed SKAF

1 HER HONOUR: On 3 April 2006 Bilal and Mohammed Skaf were charged by way of indictment with the following charges. Bilal Skaf was charged with two offences of having sexual intercourse without consent in circumstances of aggravation, namely being in company,. Mohammed Skaf was charged with being accessory before the fact to the first offence charged against Bilal Skaf. Both men pleaded not guilty to all charges and a jury was duly empanelled. On 18 April 2006 the jury found both of them guilty of all charges.

2 The events giving rise to these charges occurred on 12 August 2000. The complainant, a sixteen year old school student, had previously been a friend of Mohammed Skaf, although he had never told her his correct name: she knew him as Sam. Early on the evening of Saturday, 12 August , Mohammed Skaf telephoned the complainant at her home at Glenwood Park, and suggested that she accompany him on a drive to the city. She agreed to do so, after getting her mother's permission, and he arranged to collect her in his car. He told her that he was on his own. However, when he arrived at her house there were two other men in the car. The complainant had met one of them, the driver, once before. The other man, "Ibrahim", was unknown to her. The complainant got into the back seat beside Mohammed Skaf. The car was then driven to Gosling Park in Greenacre. Mohammed Skaf told the complainant that they were going there so that he could collect a $600 debt, and he said that they would then continue their drive into the city. During the course of this journey the men were frequently talking on their telephones in a language, presumably Arabic, which the complainant could not understand.

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.

27 Mr Zarah submitted that, given that Bilal Skaf has been classified as a high risk inmate for the whole of his period of incarceration, nearly five and a half years now, it is likely that this will continue indefinitely, with the result that imprisonment will constitute a significantly greater hardship for him than for other offenders. However, I do not think that I can make this finding in the circumstances of this case. Bilal Skaf's current non-parole period will not expire until February 2023. The non parole period which I will be imposing in relation to these offences will not commence until after that date. It is also to be noted that thus far he has been anything but a model inmate, and there have been many disciplinary charges against him. These also must have had a bearing upon his custodial situation. I think it is most unlikely that, if he were to keep out of trouble in the meantime, he would still be at risk from other prisoners in 2023 by reason of offences committed at that stage more than two decades earlier. 28 One of the factual issues to be determined on sentence is the role of Bilal Skaf in the events of 12 August 2000, and particularly whether he was the person who organised and orchestrated the assaults on the complainant. Mr Zahra concedes that he played a dominant role in the events that occurred after his arrival at Gosling Park. However he submits that it does not follow that I could be satisfied beyond reasonable doubt that Mr Skaf was the leader or organiser of the group. In particular, Mr Zahra urges that there is no evidence as to what was said in the telephone conversations between Mohammed and Bilal Skaf before the latter arrived at Gosling Park. Further, the telephone call made to the complainant later that night, when she was at the home of Mr Anderson, clearly did not originate from Bilal Skaf, who was well outside the area of the origin of those calls at that time. 29 In my view, a consideration of the sequence of events on the night of 12 August leads almost inexorably to the conclusion that Bilal Skaf was the leader and organiser of this group of men. The fact that it was his younger brother who lured the complainant to the park is clearly a relevant matter, as is the fact that Mohammed Skaf had absented himself from the scene by the time the white van arrived carrying Bilal Skaf and the others. Mohammed Skaf's work at that stage was complete. From that point on, as Mr Zahra concedes, Bilal Skaf played a dominant role in the humiliating and degrading series of acts which followed. The fact that the subsequent phone calls to the complainant originated from Mohammed Skaf has no real bearing on the issue. After all, the complainant did not know Bilal Skaf. Indeed he always denied being there that night. The only person whom she knew, and whom she would be likely to have responded to, was the person who in fact telephoned her, namely Mohammed Skaf. 30 In the circumstances I am satisfied beyond reasonable doubt that Bilal Skaf was the leader of the group of men who descended on Gosling Park on 12 August, and that he was the orchestrator and organiser of the events of that night. 31 A further matter raised by Mr Zahra relates to the categorisation of Bilal Skaf's offences as "the worst type of case". Judge Finnane categorised them in that manner. The Court of Criminal Appeal, in quashing his sentences in relation to the events of 10 and 30t August 2000, discussed this issue in some detail. What they said applies, in my view, to the present case. The present offences are extremely serious, but I could not categorise them as being within the worst category. 32 There are a number of aggravating factors to be taken into account in relation to Bilal Skaf under s21A of the Crimes (Sentencing Procedure) Act. These include that the offences involved both the actual and threatened use of violence; that they involved a series of criminal acts, and that they were part of a planned or organised criminal activity. Probably the most significant of the aggravating factors is, under paragraph (g), that the emotional harm caused by the offence was substantial. In this regard I have taken account of the very moving victim impact statement written by the complainant. Not surprisingly, given the terrifying and degrading behaviour of her assailants that night, the complainant's life has since been adversely affected in almost every respect. There were no relevant mitigating features in the relevant legislation. 33 A significant difficulty in the sentencing process arises from the fact that Bilal Skaf is already serving such a lengthy term of imprisonment. His current sentence will expire in 2029, when he will be forty-seven years old, and his non parole period in 2023, when he will be forty-one. The extreme seriousness of the current offences means that a lengthy term of imprisonment must be imposed in relation to them. The law must be seen to respond appropriately when offenders behave, as Bilal Skaf did on this occasion, in such a cruel, callous and degrading manner to another human being. Clearly the sentences I impose today must reflect the community's outrage at the offender's behaviour towards the complainant. She was only sixteen at the time, and was a completely innocent victim, having done nothing more to provoke this behaviour than to accept an invitation, from a person whom she regarded as a friend, to take a drive into the city.

34 Given the length of the sentences which I must impose for these offences, it would infringe the principle of totality if I were to make them wholly cumulative upon Bilal Skaf's present sentences. Accordingly there is general agreement that today's sentences should be partially concurrent with and partially cumulative upon his existing sentences.

35 A tension exists between the principal of totality on the one hand, and, on the other, the need to ensure that a person who deliberately commits a series of unrelated criminal offences receives adequate punishment for each of them. This tension is particularly evident in Bilal Skaf's case, given the very lengthy sentences which he is presently serving, on the one hand, and the extreme seriousness of these offences, on the other. The first factor would tend to support a lesser accumulation of the sentences for these offences, while the second would favour a much greater accumulation of sentences.

36 In this regard I think I should take my guide from the manner in which the Court of Criminal Appeal dealt with the offences of 10 and 30 August 2000. The aggregate sentences imposed in relation to the latter series of offences was seventeen years. This was made concurrent with the earlier sentences as to seven years, and cumulative as to ten.

37 There is a further complicating factor in the sentencing of Bilal Skaf. This arises from a sentence imposed by Judge Hulme in the District Court for an unrelated offence of stealing a motor vehicle. On 12 August 2005 Judge Hulme sentenced Bilal Skaf to a fixed term of nine months, which was to be cumulative as to three months on the sentence he was then serving. Since then, his other sentences have been reduced by the Court of Criminal Appeal, leaving Judge Hulme's sentence sitting on its own. Various attempts to rectify the situation have thus far been unsuccessful. Given the very lengthy terms of imprisonment which Bilal Skaf will be serving as a result of all the offences committed in August 2000, I think it appropriate to disregard the District Court sentence, which will become entirely subsumed within the sentences I will be imposing today.

38 Finally, in regard to Bilal Skaf, I should say something about the relationship between the two offences of which he stands convicted. The first offence, in which he was the principal assailant, is clearly the more serious of the two. As such, it should attract a lengthier sentence than the second offence, in which his liability was accessorial rather than as a principal offender. However the second offence was also a very serious one, particularly when one remembers that Bilal Skaf was the leader of this group. As such, there should be some degree of accumulation of the sentence relating to the second offence, albeit not a large one, having regard to the total length of the sentences in any event.

39 I turn to discuss the background and custodial situation of Mohammed Skaf. He was born on 7 May 1983 and is now twenty-three years old. He was only seventeen at the time of these offences. It would appear that he has always been strongly influenced by his brother Bilal. Like Bilal Skaf, Mohammed exhibited behavioural difficulties in his youth and was expelled from high school. He committed several other unrelated offences in 2000, which were taken into account upon his sentencing for the offences of 30 August 2000. 40 Of great significance in relation to Mohammed Skaf is the fact that, since going into custody, he has suffered from very serious illness. In November 2002 he was diagnosed with Hodgkin's Disease, a lymphoid malignancy which used to be fatal, but which can sometimes now be cured by chemotherapy and radiotherapy. The offender was initially treated with chemotherapy, which was generally well tolerated, although he has had two significant complications, namely shingles and a venous thrombosis. At the completion of his chemotherapy he underwent radiotherapy. Throughout his treatment he was kept in the secure unit of the Prince of Wales hospital where he was deprived of most facilities and of all educational services, and was allowed only infrequent visits from his family. He became extremely anxious and depressed, and his shingles are attributable to his anxiety at that time. He still feels unwell, and has a range of symptoms which still cause him continuing distress. 41 Thus far, the treatment of Mr Skaf's Hodgkin's Disease has been effective. It is now approximately three years since his treatment ceased, and he has been in remission for the whole of that time. His prognosis is favourable, but his condition will require regular monitoring over the next few years. He will continue to suffer symptoms attributable either to the disease or to the treatment. It is not suggested that his imprisonment has had an adverse effect upon his disease. However because of his disease, his incarceration has involved much greater hardship for him than it would for other inmates. I accept that this is a relevant matter in his case, and I propose to take account of it. 42 I turn to discuss Mohammed Skaf's role in these offences. As an accessory before the fact, he is in theory liable to the same punishment as the principal offender. However in fact his position in the sentencing process is clearly different from that of his brother Bilal. His role in the events of 12 August 2000, although pivotal, is less than that of Bilal Skaf. It is to be remembered that Mohammed Skaf had absented himself from the scene before Bilal Skaf and the others arrived. This being the case, certain of the aggravating features relating to the principal offence, such as the actual and threatened violence to the complainant, cannot be attributed to Mohammed Skaf, who was not present when these events occurred. Mohammed Skaf's youth at the time must also be taken into account on his behalf.

43 Having said that, I do not want to be taken as belittling Mohammed Skaf's role in these offences. In fact his involvement in the evening's activities was an absolutely crucial one. Without him, the principal offence would not have been committed at all. The complainant would presumably have remained in the safe haven of her home, and would never have known of the brutal, degrading behaviour which marked the events of that fateful evening.

44 The jury's verdict means that Mohammed Skaf well knew that his brother, who was to be in the company of other men, planned to have sexual intercourse with the complainant whether or not she consented. In effect, he set her up for the commission of this offence. I accept that it was his brother, Bilal, who instigated this series of events. However it is difficult to see this as a significant mitigating feature in relation to Mohammed Skaf. In going along with his brother's plan, and taking the complainant to a place where he knew that his brother and others were planning to sexually assault her, his culpability is less than that of his brother, but not significantly so. Moreover Mohammed Skaf's behaviour that night involved a significant breach of trust. I am not suggesting that he was in a position of authority in relation to the complainant; very clearly he was not. However in suggesting that she accompany him that evening, knowing what was likely to happen to her, he was betraying the trust she placed in him, as a friend, when she agreed to go with him. Indeed the victim impact statement emphasises the fact that, as a result of Mohammed Skaf's actions that night, the complainant has lost her trust, not only in men, but in people generally. 45 A particular problem arises in Mohammed Skaf's case because of the disparity between his current total sentence and his non-parole period. The latest date for the commencement of any sentence I impose is the expiration of his current non-parole period, namely 2 January 2012. Judge Finnane sentenced him to imprisonment for fifteen years for the present offence, and it would be inappropriate to increase that sentence. It is, in any event, very much the sort of sentence I had in mind for the offender. However a sentence of fifteen years, commencing in 2012, will represent an extension of his existing sentence by only seven years. On the face of it, this seems an inadequate response to such a serious offence; however there is no realistic alternative to this course. The total sentence will, in any event, be a very long one. And there are no similar constraints in relation to the non-parole period, so I am able to stipulate the non-parole period which I consider appropriate in the circumstances. I should say it is less than the non parole period I would otherwise have stipulated because of the factors I have already mentioned, particularly relating to Mohammed Skaf's health. 46 BILAL SKAF in relation to the first offence of aggravated sexual assault without consent I sentence you to imprisonment for seventeen years to date from 12 February 2021 and to expire on 11 February 2038, with a non parole period of eleven years to commence on 12 February 2021 and to expire on 11 February 2032. 47 In relation to the second offence of aggravated sexual intercourse without consent I sentence you to imprisonment for fourteen years to commence on 12 February 2025 and to expire on 11 February 2039 with a non parole period of eight years to commence on 12 February 2025 and to expire on 11 February 2033. 48 The first date upon which you will become eligible for release on parole will be 11 February 2033.

49 MOHAMMED SKAF, In relation to the charge of aiding and abetting the principle offence committed by Bilal Skaf I sentence you to imprisonment for fifteen years, to commence on 2 January 2012 and to expire on first January 2027, with a non parole period of 7.1/2 years, to commence on 2 January 2012 and to expire on first July 2019.

The earliest date upon which you will be eligible for release upon parole will be 1 January 2019.

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