(iii) deprives the alleged victim of his or her liberty for a period before or after the commission of the offence".
90
The only category in which there is no count aggravating the appellant's offences is that specified by s 61JA(1)(c)(i). Actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim, which need not be permanent but must be more than transient or trifling: R v Donovan 1934 2 KB 498. The factor of aggravation prescribed in s 61JA(1)(c)(i) is not necessarily of graver import than those prescribed in the remaining provisions.
91
There is no warrant for considering that the offences of the appellants were of lesser degree of heinousness in the context of offences contrary to s61JA.
92
In support of argument on this ground some fourteen indications of "the facts in this matter" were advanced. Both the appellant MMK and the Crown cited from the joint judgment (Mason CJ, Brennan, Dawson and Toohey JJ) in Veen v The Queen (No 2) 1988 164 CLR 465. After observing that maximum penalty is intended for cases in the worst category, their Honours added:
1. "
That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case: ingenuity can always conjure up a case of greater heinousness".
93
Twelve of the fourteen "indications" contain a negative. In each case there is "conjured" a matter which would have added aggravation to the circumstances of the offence beyond the extant seriousness. For example, it is said "the girls were not abducted from the street or held, and transported under duress. They attended the premises of their own free will". This is not intended to contradict those counts which had as an element the depriving of liberty and referred to the circumstances of arrival. A further example is a statement "although weapons were produced they were not used". Again this is not intended to contradict the use in support of the element of threat to do actual bodily harm. Obviously, the offences would have been even worse (omitting from consideration the possibility of further offence being charged) if there were to have been an abduction or the use of a weapon to cause harm.
94
The focus on the negative represents an exercise of exactly the sort cautioned against in the citation from Veen (No 2) . The heinousness of the offences is gauged upon what the offenders have done, not upon what acts of additional heinousness they might have engaged.
95
The two "indications" which did not contain a negative, were that the detention was "of limited duration" and that (after the offences) they were taken to a railway station where "it could be assumed transport would be available to them". I would reject the latter as an element of mitigation and what is germane to the former is what happened within the "duration" and not the extent of it.
96
There is an artificiality about this ground. The attack by the appellants has been concentrated upon what his Honour said when he made known his opinion that the "rapes" were in the worst category of that crime. What needs to be in focus is what he did in imposing sentence. Section 61JA prescribes the liability of an offender to imprisonment for life. Emphasis is added by s 61JA(2):
1. "
(2) A person sentenced to imprisonment for life for an offence under this section is to serve that sentence for the term of that person's natural life".
97
As the schedules of sentence in respect of the three appellants set out above show, the impositions on none of them approached the maximum penalty. When regard is had to the indefinite term of the maximum penalty, the perception that the appellants were treated much more leniently is fortified by observation of their respective ages and the determinate sentences received. MSK was born on 7 October 1978; MAK was born on 17 February 1980 and MMK was born on 18 July 1986. The ground of appeal is not sustained.
98
I turn to the ground numbered 5 in MMK's appeal. This is founded upon Sully J's express reference to s 21A of the Crimes (Sentencing Procedure) Act 1999 when he said:
1. "
As to the factor (k), I think that there was an abuse of trust by all of the offenders. The four brothers, in particular, must have understood that (S and G) were, at least to some extent, assuming that they would be as safe on the 27 th as they had been on the 13 th ".
99
The statutory provision is:
1. "
(2) Aggravating factors . The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
1. ………
2.
(k) the offender abused a position of trust or authority in relation to the victim".
100
His Honour had earlier touched upon the considerations when he said:
1. "
Those girls had gone to the Ashfield premises two weeks earlier. The circumstances then had been, in truth, just as risky; but as good luck had it, nothing went badly awry in fact. There could be no reasonable doubting, in my opinion, that both girls took it for granted that they would be as safe on the 27 th as they had been in fact on the 13 th . Neither could there be, in my opinion, any reasonable doubting that the offenders well understood that these two schoolgirls were likely to be acting upon precisely such an assumption".
101
The submission, adopted by all appellants, is that breach of trust involves the existence of a relationship between the parties. In a written submission counsel for MMK epitomized the submission by observing "what the offenders did to their victims was (a) terrible but it did not involve a breach of trust. Section 21A(2)(k) concerns the more traditional structures of parental or spousal trust The submission, adopted by all appellants, is that breach of trust involves the existence of a relationship between the parties. In a written submission counsel for MMK epitomized the submission by observing "what the offenders did to their victims was (a) terrible but it did not involve a breach of trust. Section 21A(2)(k) concerns the more traditional structures of parental or spousal trust". Such relationship not being present it was argued that his Honour erred in taking breach of trust into account as an additional aggravating factor. The Crown conceded that the relationship between the appellants on the one hand and S and G on the other, was not one which would usually be thought of as one of trust, but argued that the language of the subsection was wide enough to embrace such a finding in the particular circumstance that the acceptable conduct of the appellants during the previous visit on 13 July had the effect of inducing S and G to trust them.
102
On analysis, although in this case reference can be made to the earlier encounter of which no complaint is made, the Crown submission essentially puts into that context the universal entitlement and expectation that a person will not be the victim of criminal behaviour by others.
103
Whilst I would not limit the applicability of s 21A(2)(k) to the parental or spousal relationship adverted to in the submission, there is no call for attempting to define all the relationships of trust which might fall within the ambit of the provision. The submission that in this case there was not a breach of trust by the appellant in the sense of the use of that expression in the statutory provision should be upheld.
104
The misapplication of one of the factors which the legislature has scheduled does not inevitably lead to a reduction in sentence: R v Wickham [2004] NSWCCA 193. Whether a reduction should occur in any one of the cases of the appellants will need to be considered in the overall context of whether intervention is warranted, but in those considerations it will be necessary to take into account the matters which have led to the upholding of this ground.
105
I turn next to grounds relied upon by MMK to the exclusion of the other appellants.
106
The expression in ground 2 is a mis-statement to the extent that it fails to acknowledge that the sentence received by MMK was not the same as that received by MSK, in that MMK will become eligible for parole after serving thirteen years in custody, whereas MSK will not become eligible until after serving sixteen years six months in custody. The "sameness" is limited to the specification of head sentences.
107
It was an impeccable approach for his Honour to seek first to assess the individual objective culpability of the offenders. He accepted a Crown submission that they could be ranked in descending order, first MSK, second MMK, third MAK and RS equally and fourth MRK. An obvious important factor was the personal use by MSK and MMK of knives to threaten the victims.
108
Submissions in support of this ground referred to the youth of MMK and the influences of his elder brothers. These are subjective matters but are relevant to all aspects of sentence assessment. The issue is whether his Honour's assessment lay outside the range of the sound exercise of discretion or was in some way tainted by error.
109
It was argued that it was wrong in principle to increase a sentence otherwise appropriate to send a signal or a message. That proposition is not doubted: Walden v Hensler 1987 61 ALJR 646. However, nothing is pointed to which demonstrates that his Honour did so.
110
The error in principle would occur if there was increase in sentence but that does not mean that a sentencing judge should not include in his sentence assessment a reflection of an ingredient of general deterrence. Including an element of general deterrence does, in a real sense, amount to "sending a signal or message". It does not follow that if such a message is to be sent, the sentence has inappropriately been extended.
111
Sully J's remarks on sentence demonstrate that he bore in mind, appropriately when considering the totality of impositions, requisite matters of principle which he recognized were not always easily reconciled. His remarks were clear and he recollected the purposes of his task:
1. "…
.the protection of society; personal and public deterrence; denunciation of the crimes; retribution for the injury caused, but remembering always that retribution is to be just when it generates primitive vengeance; and the reform of the offender".
112
Ground 3 complains of the orders for partial accumulation of sentences. A written submission asserted that his Honour:
"erred as both the total and individual sentences imposed were too severe. Other important factors in sentencing young offenders were swamped by the desire for vengeance and retribution".
113
The accusation that his Honour was swamped by a desire for vengeance and retribution was unsupported by identification of any remark or conduct by the sentencing judge to that effect. The extravagant language of the submission was quite unjustified and should not be allowed to pass without explicit rejection.
114
Underlying the complaint of MMK encompassed by this ground was a contention that his criminality should be gauged as one episode and punished as such, rather than as separate events meriting some individual punishment.
115
It was sought to demonstrate inherent error by reference to counts 7 and 8. Counts 6, 7 and 8 charged offences physically performed by MMK. In each case G was the victim. Count 6 involved his forcing her to fellate him. Count 7 reflected the next assault which involved penile/vaginal intercourse. MMK was wearing a condom. He removed the condom and count 8 arose out of another following act of penile/vaginal intercourse.
116
The submission argued that count 8 would be "put in perspective" if it were noted that, as a result of the orders for partial cumulation, MMK "will serve three years because he interrupted an act of intercourse to remove a condom".
117
To the contrary of the proposition that what was to be dealt with was one episode, that sequence of events confirms a view that MMK subjected G to separate criminal assaults. The different nature of the conduct in counts 6 and 7 does not need elaboration to discriminate between them and there is, in my opinion, obvious discrimination as well as escalating seriousness, in proceeding with a new act of intercourse without wearing a condom (count 8) after forcing the earlier act whilst wearing one. He did not, on the evidence, interrupt an act of intercourse, but twice forced intercourse on the victim.
118
It is not to be ignored that, in respect of offences of which MMK was not the physical perpetrator, he received the benefit of total concurrency for the group of offences charged as counts 1, 2, 3 and 4 and the group of offences charged as counts 9 and 10 in the indictment presented against him.
119
Sully J did not err in the manner in which he accumulated the sentences.
120
Ground 4 again overstates the thrust of complaint. It is plain beyond argument that his Honour took into account the juvenile status of MMK. When announcing his ultimate conclusions, he prefaced his remarks as saying "notwithstanding MMK's youth". The nub of complaint is really that his Honour should have given MMK a greater reduction of sentence on account of youth.
121
A submission stated that his Honour did not expressly refer to s 6 of the Children (Criminal Proceedings) Act 1987 but it was acknowledged that he was clearly aware of it. It was not his Honour's task to engage in ritual incantations. As an essential and primary exercise it was to make known the reasons for the sentences that he was about to impose. He did this in considerable detail.
122
The evidence powerfully demonstrates that MMK conducted himself in the fashion of an adult and committed crimes of considerable gravity: R v Gordon 1994 71 A Crim R 459. Even in those circumstances a sentencing judge must, in accordance with both statute and well established principle give special weight to the goal of rehabilitation of a young offender and take into account, to the extent applicable in a particular case, the dependency and immaturity of the offender.
123
His Honour commenced specific remarks concerning MMK by referring to his precise age. He quoted at length from reports emanating from officers of the sexual offenders programme of the Department of Juvenile Justice and Mr Webster, a psychological counsellor.
124
There are discussions in numerous decided cases adverting to particular matters requiring emphasis when dealing with juvenile offenders in various circumstances. I am unpersuaded that his Honour acted in ignorance of or by ignoring any relevant principle concerning appropriate sentence assessment for a juvenile offender.
125
Ground 6 complained that the sentence on MMK was increased because of an assessment by his Honour of the risk that MMK might re-offend. There is no indication in the remarks on sentence or elsewhere that his Honour applied such an increase. Somewhat similarly to matters earlier canvassed, the argument in support of this ground takes a comment by his Honour and then asserts as fact that, by reference to it, the sentence received by MMK has been increased, although there is an absence of identification as to how the fact of increase is asserted to be established.
126
Sully J observed that MMK's continuing denial of guilt made it difficult to extract assistance from the reports on the factor of potential re-offending. I understand his Honour's remarks, in their context, as explaining why he was unable to make an assessment more favourable to MMK and he was not suggesting that he was increasing any assessment otherwise made. It is obvious that, contrary to a submission, his Honour was not discriminating against MMK because he exercised his right to stand trial. Indeed, despite his observations of difficulty already mentioned, he had held that it could not be said that MMK had no prospect of rehabilitation.
127
Although specifically tendered only on the basis that the Court should look at it (and another affidavit) if coming to resentence, it should be remarked in fairness to MMK that in an affidavit sworn 11 October 2005 he deposed:
1. "
Since my conviction in October, 2003 and my being sentenced on 22 April 2004 I have had time to think about the matters for which I have been convicted. I was involved in the sexual assaults on (G and S). While I don't agree with everything they said I realise that by not admitting what I did and telling the truth I have no right to complain".
128
The final ground relied upon by MMK asserted that the sentence imposed was manifestly excessive. This can be dealt with in the context of whether intervention by this Court should take place. It is also a submission advanced by the other appellants in respect of their respective sentences.