Regina v MAK; Regina v MSK; Regina v MMK

Children (Criminal Proceedings) Act 1987 s 61JA Crimes Act 1900 LEGISLATION CITED: s 21A Crimes (Sentencing Procedure) Act 1999 s 6(3) Criminal Appeal Act 1912 s 249A Criminal Procedure Act 1986

Baumer v The Queen 1988 166 CLR 51 Ibbs v The Queen 1987 163 CLR 447 Pearce v The Queen 1998 194 CLR 610 R v Donovan 1934 2 KB 498 R v Gordon 1994 71 A Crim R 459 R v Hammoud 2000 118 A Crim R 66 CASES CITED: R v Simpson 2001 53 NSWLR 704 R v Twala NSWCCA, unrep 4 November 1994 R v Wickham [2004] NSWCCA 193 The Queen v Olbrich 1999 199 CLR 270 Veen v The Queen (No 2) 1988 164 CLR 465 Walden v Hensler 1987 61 ALJR 646

PARTIES: Regina v MAK; Regina v MSK; Regina v MMK

FILE NUMBER(S): CCA 2004/2573; 2004/2575; 2005/3

R. Cogswell SC with A. Mitchelmore (Crown) T.A. Game SC (MAK) COUNSEL: S. Odgers SC (MSK) A. Haesler SC (MMK)

S. Kavanagh (DPP) Watsons (MAK) SOLICITORS: Michael Croke & Co (MSK) A.L. Wunderlich & Co (MMK)

LOWER COURT FILE NUMBER(S): 70002/03; 70201/03; 70203/03

IN THE COURT OF CRIMINAL APPEAL 2004/2573 2004/2575 2005/3

Friday 4 November 2005 REGINA v MAK REGINA v MSK REGINA v MMK JUDGMENT 1 McCLELLAN CJ at CL : I have had the benefit of reading the judgment of Grove J in draft. I agree with the orders proposed by his Honour and the reasons for those orders. 2 Grove J refers in [56] to the submission by counsel on behalf of MSK that this Court should favourably consider MSK's appeal because, inter alia, of his "cultural conditioning having essentially come out of Pakistan with (sic) a society with very traditional views about women … ." 3 As Grove J points out the purport of the submission was not made clear. There was no evidence before the Court from which any conclusion about the views of Pakistan society about women could be formed. Furthermore, the phrase "traditional views about women" was not explained. 4 Whatever be its intended meaning the submission must be rejected. It is a fundamental right of every person in a civilised society to live without fear of being assaulted, whether it be physical assault or assaults of a sexual nature. For this reason the legislature has made all forms of assault upon the person a crime imposing heavy penalties on those who do not respect that right. When, as happened in the matters under appeal, the conduct of an offender demonstrates a complete disregard for that right our community expects the courts to impose penalties which punish the offender and mark out the seriousness of the offence so that others will be deterred from acting in a similar manner. 5 GROVE J : These are applications for leave to appeal against severity of sentence imposed by Sully J sitting in the Common Law Division of the Supreme Court. The appellants MSK and MAK were jointly tried before his Honour and a jury. They appealed against conviction, substantially on the ground that, having elected to stand trial without legal representation, the inhibitions on cross examination of complainants legislated by s249A of the Criminal Procedure Act 1986 were invalid, or if applied, rendered their trial unfair. Those appeals failed: 2004 61 NSWLR 204. MMK was tried before his Honour and another jury jointly with MRK and RS. They were legally represented. RS died after conviction but before sentence. Appeals by MMK and MRK against conviction have been dismissed: [2005] NSWCCA 273; [2005] NSWCCA 271. MRK has not sought leave to appeal against sentence. 6 It is convenient to hear these applications together as the offences arose from facts common to all appellants. To place matters in context some reference is made to the participations of all offenders. With the exception of RS, Sully J pronounced sentence on the appellants and MRK on 22 April 2004, some minor correction being made on 29 April 2004. 7 Each of MSK and MAK was convicted on nine counts of aggravated sexual assault in company contrary to s 61JA of the Crimes Act 1900 . The prescribed maximum penalty for such an offence is imprisonment for life. On five counts (1, 2, 3, 5 and 6) the circumstance of aggravation was immediately before commission of the offence threatening to inflict actual bodily harm; on three counts (4, 8 and 9) it was depriving of liberty before commission of the offence and on the remaining count (7) at the commission of offence threatening to inflict actual bodily harm. 8 MSK was sentenced on counts 5, 6, 7, 8, and 9 to imprisonment for fixed terms of ten years commencing on 13 August 2002 to be served concurrently; on count 4 to imprisonment for a fixed term of ten years commencing on 13 August 2004; on count 1 to imprisonment for a fixed term of twelve years commencing on 13 August 2006; on count 2 to imprisonment for twelve years commencing on 13 August 2009 with a non parole period of nine years, and on count 3 to imprisonment for twelve years commencing on 13 August 2012 with a non parole period of six years six months. 9 The effective sentence received by MSK is imprisonment for twenty two years commencing on 13 August 2002 with a non parole period of sixteen years six months. His earliest date of eligibility for parole is 12 February 2019. 10 MAK was sentenced on counts 1, 2 and 3 to imprisonment for fixed terms of ten years commencing on 1 August 2002 to be served concurrently; on counts 5, 6, 7, 8 and 9 to imprisonment for fixed terms of ten years commencing on 1 August 2004 to be served concurrently and on count 4 to imprisonment for twelve years commencing on 1 August 2006 with a non parole period of eight years. 11 The effective sentence received by MAK is imprisonment for sixteen years commencing on 1 August 2002 with a non parole period of twelve years. His earliest date of eligibility for parole is 31 July 2014. 12 MMK (indicted with MRK and RS) was also convicted on nine counts of aggravated sexual intercourse in company contrary to s 61JA. On five counts (1, 2, 3, 6 and 7) the circumstance of aggravation was immediately before the commission of offence threatening actual bodily harm; on three counts (4, 9 and 10) depriving of liberty immediately before the commission of offence and on the remaining count (8) at the time of commission of offence threatening to inflict actual bodily harm. MMK was acquitted on counts numbered 5 and 11 which had charged different offences. 13 MMK was sentenced on counts 1, 2, 3 and 4 to imprisonment for fixed terms of ten years commencing on 1 August 2002 to be served concurrently; on counts 9 and 10 to fixed terms of imprisonment for ten years commencing on 1 August 2004 to be served concurrently; on count 6 to imprisonment for twelve years commencing on 1 August 2006 with a non parole period of nine years; on count 7 to imprisonment for twelve years commencing on 1 August 2009 with a non parole period of six years and on count 8 to imprisonment for twelve years commencing on 1 August 2012 with a non parole period of three years. 14 The effective sentence received by MMK is imprisonment for twenty two years commencing on 1 August 2002 with a non parole period of thirteen years. His earliest date of eligibility for parole is 31 July 2015. It was ordered that he serve his sentence in a juvenile detention centre until the age of twenty one. He will attain that age on 18 July 2007. 15 The offences involved two complainants whom I will refer to as S and G. They were at the time aged seventeen and sixteen years respectively. They had not completed their secondary education. 16 On the evening of 12 July 2002, S and G were in the city of Sydney in the area of George Street. A black Nissan Skyline car pulled to the kerb and the occupants began to talk to them. In a limited way, MMK and MRK introduced themselves and invited the girls to come back to their house. They declined but got into the car and engaged in conversation. It was realized that the complainants had missed a train home (it was about 2 am on 13 July) and they accepted a renewed invitation to go to the men's house. The car was driven by a third man, the appellant MAK. On a journey to the house, stops were made to collect a fourth man, the appellant MSK, and to obtain food at a McDonalds outlet. At the house, the group conversed, listened to music and watched DVD and video displays. Some footage was filmed by a video camera. Eventually S and G slept on blankets on the floor of the lounge room. MRK slept between them. The other men retired in their bedrooms. It was not suggested that any sexual activity took place on this occasion. 17 S gave evidence that when she awoke later in the morning she saw other persons in the house, including an older man, another younger man, young women and some children. 18 MRK drove the complainants to a railway station in a different vehicle. At various times mobile telephone numbers were exchanged and acquired. 19 On 27 July, calls were received from MMK asking the complainants to come out for the evening. They were going to a party but it was agreed that there would be a meeting afterwards at about midnight. At about that time the complainants were collected in the Skyline vehicle near a railway station. The driver was again MAK and the other occupants of the car were MMK, MSK and RS. 20 They returned to the house and there encountered MRK who was lying on the floor giving an appearance of having just awoken. The group commenced to converse and watched television. Some liquor was produced. S tasted a drink and said that she did not like it. MSK reprimanded her for this rejection. 21 Shortly thereafter the complainants went to the bathroom and on their return S sat on a lounge next to MMK and G sat on the floor near MRK. In crude language MMK suggested that he wished to have sex with S and told her to come to a room. She declined. This initial approach almost seemed to operate as a signal for the commencement of the series of crimes for which offenders were later indicted. 22 S was physically restrained by MMK. MSK slapped her face. She commenced to cry and asked to be allowed to leave. She was obstructed when she went to a doorway and MSK produced a knife. She was eventually forced into a bedroom. 23 In the meantime, G had picked up their bags and followed MRK into a room where she attempted to use a mobile phone. MRK took it from her, turned off the light and closed the door. G turned the light back on and MMK opened the door and turned it off again. This happened several times until MMK entered the room with his trousers off and carrying a long bladed kitchen knife. G tried to access another mobile phone from the bags but MMK took it from her. He forced G to fellate him and thereafter she was made to remove her underwear and MMK twice engaged in penile/vaginal intercourse. On the first occasion he wore a condom but he removed it on the second occasion. 24 MMK had produced another knife in the course of these events and as well he at one time falsely told G that S was dead. 25 Following the attacks by MMK, G was subjected to further sexual assault by RS. 26 S had run to a bathroom but MAK put his foot into the door to prevent its closure. MSK used a knife to force S to enter a bedroom. MRK was already in there. She sought his help. He told her that he could not make the others do anything and that she should do what she was told. Reference was made to drunkenness and MRK left the room. MSK then entered with another knife. He produced some bullets and mentioned a gun. He ordered S to take off her clothes, saying he was going to kill her. After initial refusals, she slowly complied with his demand. MSK turned off the light and took off his own clothes. Anticipating his intention, S pleaded with him to use a condom which, after initial refusal, he did. 27 There followed three penile penetrations of S's vagina by MSK, such entries being made when S was forced to adopt various positions while MSK perpetrated the assaults. When they were over, MSK turned on the light, put on his clothes and left, threatening her with retribution if she went to the police or told anybody about what had happened. S put her clothes back on but MAK entered the room. He grasped her lower clothing and removed it, following which he removed his own trousers and then turned off the light again. He pushed her onto the bed and S asked him to use a condom. MSK entered the room and said something in a foreign language. MAK told S that he had gone to get a condom, however, no condom was obtained and MAK forced S onto a bed and had penile/vaginal intercourse. He later said that he did not like condoms. He threatened her with death if she went to the police. 28 Ultimately S was able to return to the lounge room where she again came into the company of G. 29 The foregoing does not recite every detail of the ordeals to which the complainants were subjected. The Crown relied upon joint criminal enterprise to demonstrate the culpability of each appellant in respect of all counts, but the above chronicle shows that each of the appellants engaged personally in sexual assault of one or other of the victims in circumstances of grave seriousness. Although not the subject of application, the more lenient treatment of MRK followed the absence of sexual assault by him personally but his culpability arose out of his participation otherwise in the joint criminal enterprise. 30 After both S and G had returned to the lounge room, they were told to go and get in the car. They went out a back door accompanied by all five men. They were driven away from Ashfield where the house was located and put out of the car in the main street of Campsie. During the journey, some insulting remarks were passed to them and they were warned not to go to police. 31 After the men left in the car the complainants were able to communicate their plight and about ten or fifteen minutes after a call, which they were able to make, police and ambulance arrived. The complainants were taken to hospital and examined by professional attendants. 32 I turn to the grounds of appeal advanced on behalf of the individual appellants. THE APPEAL OF MSK 33 Since lodging grounds of appeal against sentence, MSK has obtained legal representation. With that assistance, the grounds have been refined as follows: 1. " 2. The sentencing judge erred in respect of the commencement dates for the sentences imposed on counts 2 and 3.

10. The sentencing judge erred in characterising the offences as an 'objectively worst case'.

11. The sentencing judge erred in his assessment that the offences involved a breach of trust.

12. New evidence shows that the sentence imposed is not appropriate". 34 It is convenient to deal first with the ground numbered 12. The appellant seeks to rely upon the content of a report dated 4 October 2005 by Professor David Greenberg, a forensic psychiatrist. The report records interviews for the purpose of psychiatric assessment on six occasions and identifies five of them as 24 May, 11 July and 17, 23 and 24 September 2005. The report is an exhibit to an affidavit of the appellant's solicitor. He also seeks to rely upon an affidavit sworn by himself on 11 October 2005 and another sworn by his father (HK) on 7 October 2005. 35 The initial question is whether this material should be received by this Court. As counsel acknowledged, the principles upon which such evidence may be received are well settled. In short, the issue is whether in the absence of such evidence, miscarriage of justice is perceived. 36 The Crown Advocate, Mr Cogswell SC who appeared with Ms Mitchelmore for the respondent submitted that the material should not be received and he drew attention to the very particular and obvious care which Sully J paid to seeking to ensure that the then unrepresented appellant had put before the Court everything admissible that he wished. At the sentence hearing he called both his wife and his father to give evidence. 37 Of stated importance to his Honour's assessment were the contents of psychological reports concerning MSK, which were prepared whilst he was in custody. His Honour expressly accepted assessments of which Dr Baron was the principal reporter. 38 Enquiries were made to satisfy MSK that all the available psychological material had been produced to the Court. 39 Mr Odgers SC, who now appears for MSK summarized his contentions by pointing out that MSK had been previously unrepresented, he did not have the capacity to acquire material such as is now contained in Professor Greenberg's report, and, having now obtained representation and such material and made it available, its rejection would amount to miscarriage. 40 In general terms I would not regard that combination of factors as sufficient to sustain the admission of new evidence, but, without delaying to engage in lengthy discussion, in the circumstances of the present application of MSK, I would receive the material and proceed to consider whether it is of consequence in analysing the sentences imposed on MSK. 41 At trial MSK had concentrated his attack on the Crown case upon the issue of identity. Sully J noted in his remarks on sentence that MSK had raised what was essentially an alibi defence, asserting that he had not been at the house at the relevant time, that S and G were not there at the time of the alleged assaults, and nor had any such assaults been perpetrated. He did not testify himself but called some evidence in support of his contentions. At the time of appearing for sentence and the preparation of any pre sentence material MSK adhered to his denial that he was guilty of any form of sexual abuse on S or G. 42 That posture now needs to be contrasted with the history recorded by Professor Greenberg as being obtained from him. Part of the report reads: 1. " (MSK) gave a coherent account of himself during the time period prior to and leading up to the events of 27 and the 28 July 2002. He states that he told his brothers that he was 'unwell' and about the 'voices'. He reports having about 5 to 7 alcohol drinks with his brothers at (MTK's) home in Ashfield before they drove to pick up these 2 female victims. He states that after they picked up the two female victims they returned to their own home in Ashfield and again continued to drink alcohol. He states that in total he probably had about 10 drinks of alcohol which were spirits mixed with soft drinks. He claims that at the time he claims he was 'suffering from voices' which commanded him to slap the one of the female victim's across the face. He stated the 'voices commanded' him to get a knife from the kitchen and subsequently, the voices again 'commanded' him to sexually assault her. He denies he was sexually attracted to the victim. He denies he had sexual urges to have sex with her. He claims that at the time he was intoxicated with alcohol. He states that he had difficulty getting an erection. He reports that at the time of the commission of the offences, 'I was commanded by voices and I wasn't on my medication. I was so affected I did not know these things were wrong'. He states that directly after the sexual incident he realised the wrongfulness of his actions. He did not report the matter because he did not have the 'proper guidance' available to him. He states that family were divided and everyone did their own thing. He states he was following the command of the 'voices' at the time of the offences. He states the 'voices' forced him to threaten the victim with a knife and forced him to force her to take off her clothes and sexually assault her. He claims the 'voices drove (his) body all the way because I was not taking my medication'. He states again he was not aware of his actions". 43 MTK is another brother of the appellants who is not alleged to be involved in the commission of the offences. He was not called as a witness at either the trial of MSK and MAK or the separate trial of MMK, MRK and RS. 44 MSK included in the history which he gave to Professor Greenberg that he had commenced to hear voices when he was in his mid teen years. The voices told him to do bad things. An Imam told him he was hearing the voice of Satan. His father, who is a medical practitioner, treated him with various anti psychotic medications. When he stopped taking this medication he sometimes had visions, including visions of a tiger. 45 Despite this dramatic information emanating from MSK Professor Greenberg, inter alia, expressed the following opinion: 1. " I am of the opinion that (MSK) is not suffering from a psychotic mental illness such as Schizophrenic Disorder. Although he complains that he is having auditory hallucinations ('voices') and at times has complains that he has visual hallucinations (visions), there is no evidence of his having the other symptoms of schizophrenia or psychosis, such as disorganised thoughts, overt delusions, negative symptoms of schizophrenia, and continuous signs of psychiatric disturbance with marked deterioration of functioning. He appears at this time to have no organic basis for any possible psychotic mental illness. It therefore cannot be said that he suffers from a major psychotic illness". And: 1. " I have also considered that there is a possibility of Malingering and I cannot at this time exclude this possibility. There is also no additional supportive documentation such as his history of his father's medical assessment and medical records of his treatment over the approximate 7 years whilst living in Pakistan". 46 Professor Greenberg does diagnose MSK as having an atypical obsessive compulsive disorder. He describes it as atypical because MSK has obsessional thoughts without the compulsion. He opines that MSK, at the time of the offences, was suffering from a mental disorder, namely mixed paranoid and anti social personality traits, with atypical obsessive compulsive disorder. However it is difficult to attribute relevance to this diagnosis in the context of the assessment of sentence (if it is accepted) as its lack of effect is described by the professor in these terms: 1. " I am of the opinion that despite (MSK) suffering from this mental disorder, he understood the nature and the quality of his actions at time of commission of the offences, after his arrest, during his trail (sic) and at time of his sentencing. He also, in my opinion, he could understand the wrongfulness of his actions after his arrest, during his trail (sic) and at time of his sentencing. Throughout the period of his arrest, trial and sentencing, even when he discontinues his anti psychotic mediations, his perception of reality is not distorted to the extent to which he does not understand the nature of his actions or the consequences of such actions. In other words, he had insight into the reality of his situation and circumstances as well as his subsequent behaviours". 47 The consequences of the stated disorder on MSK's judgment is said to relate to his decisions about defence and legal representation. It is plain that MSK had no defence of mental illness and Professor Greenberg's reference later in his report to substantial impairment may indicate that it was not appreciated that that expression in the terminology of the criminal law refers to the reduction of culpability for murder to manslaughter. Insofar as the expression may have been intended to advert simply to mitigation of sentence, Professor Greenberg's opinion is, to say the least, guarded. 48 Most importantly, it is said by Professor Greenberg that he has largely relied upon MSK and his father to give accounts of symptoms. For reasons to which I now turn, I would not regard either of them as reliable sources. 49 MSK's affidavit asserted that the history which he had given to Professor Greenberg was true but he offered some corrections to some matters recorded in the report. His father deposed to noticing strange behaviour by MSK from about the age of eleven, receiving complaints from him of visions including seeing tigers and hearing the voices of both angels and Satan. He listed medications which he prescribed for MSK over a number of years. These varied from time to time and extended from when MSK was aged sixteen until by the time he had reached age twenty four, he was being prescribed the drug Resperidol. 50 Both deponents were cross examined in this Court. The demeanour of neither assisted their credibility, but I would not, for that reason, reject it. At the heart of what is now asserted are the symptoms of which MSK claims to have been affected. 51 MSK did not seek to resile from that part of the history recorded by Professor Greenberg in which he described visiting Australia from Pakistan on nine occasions between 1998 and 2002. The seventh visit extended for a period of eight to nine months. He obtained no medication here but claimed that he had brought a sufficient supply from Pakistan to cover the whole period. This assertion, in my view, borders upon the incredible. 52 However, cross examination pointed up how doubtful these claims are. Correcting history recorded in the report that MSK forgot to see a psychiatrist, he explained that what he had said was that he had forgotten to bring his medication to Australia on his last visit. He had arrived in Australia the month before the offences were committed. He said he had medication prescribed for his father in Pakistan. However his father testified that MSK had told him that he was taking that medication (although the father did not know whether this was truthful or not) but specifically he agreed that MSK had not said that he had failed to bring the medication with him from Pakistan. This contradiction has considerable significance when it is appreciated how silent MSK has been about these matters until recent times. 53 Whilst it is recognized that, up until the consultation with Professor Greenberg, MSK was denying any offence, it is observed that there is no record of these dramatic complaints to anyone who saw the appellant for the purpose of pre sentence report. 54 Insofar as MSK seeks mitigation of sentence by reason of reduction of culpability on account of the claimed mental disorder, he bears the onus of establishing it as a matter of probability: The Queen v Olbrich 1999 199 CLR 270. 55 MSK has failed to establish the necessary basis for mitigatory consideration for the matters claimed. It is to be recalled that Professor Greenberg cannot exclude the possibility of malingering and the material does not satisfy that MSK is not feigning symptoms, the reports of which must be accepted before the contention by counsel that "new evidence supports a conclusion that MSK's culpability for the offences was at a lower level than apparent at sentencing" can be accepted. 56 I should not part from this ground without reference to an express submission that: 1. " the new evidence does tend to establish he suffered from a disorder which, combined with his cultural conditioning, having essentially come out of Pakistan with a society with very traditional views about women combined with his use of alcohol in parties where excessive drinking occurred, combined with his personality traits, which was clearly a factor in the commission of these offences, that in a sense the applicant was a cultural time bomb". 57 In response to enquiry, it was explained that the thrust of the submission was that, if MSK suffered from a disorder, his culpability should be regarded as lessened by the stated combination of factors. 58 The exact description by Professor Greenberg of diagnosis was: 1. "… .I am of the view that (MSK) has an atypical presentation of OCD (obsessive compulsive disorder) where he has only the obsessional thoughts without the compulsions". 59 On that definition, it is difficult to appreciate why the disorder should fit the description. However, whilst it may be perceptible that a person afflicted by compulsions over which he may have limited ability to control and thus might be considered of diminished culpability, the same would not seem to apply to obsessions when the element of compulsion is absent. 60 The evidence did manifest the consumption of alcohol on the night of the offences. MSK gave a history of an extended period of alcohol use beforehand. Evidence and reports assume knowledge that it is a tenet of Islam to eschew alcohol. Professor Greenberg obtained a history from MSK that "the family were not devout Muslims". (It is of interest to note that when it comes to dealing with the appeal of MMK, his history to Mr Webster, a psychologist, included an early life of "stability, privilege and prayerfulness" although there were contradictions between outward fidelity to Islamic teachings and behaviour within the family circle). MSK does not attribute his engagement in the rapes of S and G to intoxication but to his claim of being commanded by "voices". I do not regard his having partaken of alcohol as an element contributing to the lessening of his culpability. 61 Whatever counsel implied by his expression "traditional views about women", neither is there to be extracted some element of mitigation. If it was intended to suggest that differences might be observed in behaviour in the respective "cultures" of Pakistan and Australia, there was, and is, not the slightest basis for concluding other than that in both places, all women are entitled to respect and safety from sexual assault. The expression "cultural time bomb" was, to say the least, inappropriate and inapt. It would understandably be regarded as offensive by those who fell within the scope of its insult. Whatever counsel implied by his expression "traditional views about women", neither is there to be extracted some element of mitigation. If it was intended to suggest that differences might be observed in behaviour in the respective "cultures" of Pakistan and Australia, there was, and is, not the slightest basis for concluding other than that in both places, all women are entitled to respect and safety from sexual assault. The expression "cultural time bomb" was, to say the least, inappropriate and inapt. It would understandably be regarded as offensive by those who fell within the scope of its insult. 62 There is nothing of assistance to MSK to be drawn from the submission. 63 I would reject ground 12. 64 Ground 2 complains of the partial cumulation of sentences in respect of counts 2 and 3. 65 In the above short description of the offences, reference was made to MSK making penile penetration of S's vagina on three occasions. Counts 2 and 3 in the indictment against MSK refers to the latter two acts. His Honour's finding in respect of the three counts were expressed as follows in his remarks on sentence: 1. " Count 1 ……. Act: Penile/vaginal intercourse. Weapon: A knife with a brown wooden handle, bigger than the red handled pocket knife with which MSK had threatened her in the bathroom before she was taken into the bedroom.

Count 2 …….. This followed immediately after the first act had finished, and there had been a suggestion, not proceeded with, to have intercourse ' doggy style '. Same assailant, victim, type of intercourse and weapon. Same condom .

Count 3 …….. This followed immediately after completion of the act charged in Count 2. The victim on top of the assailant, otherwise details as for Count 1". 66 The sentences on counts 2 and 3 were imprisonment for twelve years commencing on 13 August 2009 with a non parole period of nine years and imprisonment for twelve years commencing on 13 August 2012 with a non parole period of six years and six months respectively. It was submitted that these were "identical offences committed on the same victim immediately one after the other with no distinguishing factors requiring or justifying an element of cumulation". The commencing dates were fixed having regard to matters of cumulation. In his written submissions, Senior Counsel observed that the sentence on count 4 commenced two years after sentences (commenced) in respect of offences committed on G and that The sentences on counts 2 and 3 were imprisonment for twelve years commencing on 13 August 2009 with a non parole period of nine years and imprisonment for twelve years commencing on 13 August 2012 with a non parole period of six years and six months respectively. It was submitted that these were "identical offences committed on the same victim immediately one after the other with no distinguishing factors requiring or justifying an element of cumulation". The commencing dates were fixed having regard to matters of cumulation. In his written submissions, Senior Counsel observed that the sentence on count 4 commenced two years after sentences (commenced) in respect of offences committed on G and that "no challenge is made to the partial cumulation of 2 years". It was further "conceded that it was appropriate to partially accumulate count 1 by two years" as it was discrete from offences committed on G. 67 It is not correct to describe the offences in counts 2 and 3 as identical. Counsel drew attention to S's evidence which was that, after her refusal of MSK's direction to engage in a particular position for intercourse, he made her adopt yet another position. The latter was different from what had occurred and constituted count 1. 68 The seriousness of criminal conduct escalates with repetition. What constituted count 3 was a separate sexual assault by MSK which, as I have indicated, differed in method from the earlier assault. Whilst it is apparent that the offences charged in counts 2 and 3 followed in succession and that fact, and the common feature that penile/vaginal intercourse was involved, are matters relevant to be taken into account in sentence assessment, it remains a matter for the exercise of discretion to determine whether and, if so, to what extent, cumulation should be ordered: R v Hammoud 2000 118 A Crim R 66. 69 Of course, the exercise of discretion must be undertaken in accordance with principle. It was his Honour's task to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality: Pearce v The Queen 1998 194 CLR 610. I am unpersuaded that his Honour's discretion has been shown to have miscarried. Not only were the offences self evidently serious but there was a discernible element of discrimination in the actions taken by the offender, and it was appropriate for his Honour to consider whether the new and different assault represented an escalation in seriousness deserving of being reflected in punishment. 70 In the final analysis the issue is whether a less severe sentence was warranted and should have been passed: s 6(3) Criminal Appeal Act 1912. 71 In respect of grounds 10 and 11, the applicant adopted and relied upon submissions advanced in support of similar grounds on behalf of MMK and they can be dealt with and considered in the context of argument on his behalf. THE APPEAL OF MAK 72 The appellant MAK is also now legally represented. His amended grounds of appeal are expressed: 1. " 1. In the event that the Court upholds the appeals of either MSK or MMK, the parity principle requires that there be an appropriate reduction in the sentence for the applicant MAK.

2. The trial judge erred in failing or declining to find special circumstances in the case of MAK.

3. The sentences imposed on counts 1, 2, 3, 5, 6, 7, 8 and 9 are manifestly excessive.

4. The trial judge erred in his assessment that the offences involved a breach of trust". 73 Ground 4 is similar to a ground advanced on behalf of MMK and MSK and it will be convenient to consider them together. In addition Mr Game SC for MAK, expressly joined in ground 1 (MMK) and ground 10 (MSK) which challenged his Honour's characterisation of the offences as an "objectively worst case". 74 As Mr Game commented, there are complications in the argument in respect of grounds 2 and 3 and they can be identified by examination of the culpability of MAK on the various counts. Count 4 related to sexual assault by MAK personally upon S. I have described his coming into the bedroom after MSK perpetrated three acts of penile/vaginal intercourse on her (counts 1, 2 and 3), removing clothing from himself and from her and then forcing intercourse. 75 His Honour's remarks on sentence referred to the offence in count 4 in these terms: 1. " Followed immediately, ' a few minutes - probably less than a minute' after MSK had completed the act charged in count 3. No knife or similar weapon. Same victim, and same type of intercourse as 1 and 2. No condom ". 76 Thus it was put that "all of the liability" for the other eight counts (scheduled in ground 3) concerned MAK's participation in the joint enterprise and arose out of physical acts, performed not by him but by MSK, MMK and RS. Thus it was put that "all of the liability" for the other eight counts (scheduled in ground 3) concerned MAK's participation in the joint enterprise and arose out of physical acts, performed not by him but by MSK, MMK and RS. 77 The structure of the sentences imposed on MAK commenced with concurrent fixed terms of ten years for counts 1, 2 and 3, followed by further fixed terms of ten years cumulated to the extent of two years for counts 5, 6, 7, 8 and 9. The sentence on count 4 was cumulated upon those terms by a further two years. Hence MAK would be in custody for four years for his liability in the joint enterprise referrable to physical attacks on the victims by others and then serve a sentence with a non parole period of eight years for the offence which, in the physical sense, he committed himself. 78 Although error cannot be identified in precise terms the submission was that "it couldn't be right" that the fixed terms (ten years each) for accessorial liability were longer than the non parole period (equivalent in the requisite sense to fixed term) which was fixed at eight years for the "rape" committed by MAK personally. The aggravating factor relevant to that offence was deprivation of liberty which, it was submitted, stands in favourable contrast (from the point of view of the offender) with the offences where others were the primary offenders and the aggravating factor involved was the use of knives to threaten. Liability on counts 5, 6, 7, 8, and 9 relates to events occurring out of the immediate presence of MAK although his guilt was demonstrated from his involvement in the detention of S and G, his presence in the house together with his knowledge that repeated rapes were being committed, particularly against G. 79 As already noted, the effective sentence received by MAK can be expressed as imprisonment for sixteen years with a non parole period of twelve years. The proportion between total sentence and non parole period is in accordance with the statutory prescription. His Honour expressed himself as unpersuaded that there should be any "downward adjustment" of the statutory non parole period. It was not suggested that he overlooked addressing the issue but it was submitted that there was "inadequate reasoning to support his Honour in declining to find special circumstances". 80 There is no obligation on a sentencing judge to give reasons for not varying the statutory proportion: There is no obligation on a sentencing judge to give reasons for not varying the statutory proportion: R v Simpson 2001 53 NSWLR 704. I would reject the submission that, insofar as his Honour chose to express some reasons, they were inadequate. He noted that it was MAK's first commitment into custody, that it was likely that he would spend some time in protection but he was indisputably correct when he described the appellant's future as clouded, especially as he maintained his denial of offending. 81 In connection with submissions concerning length of sentences and the conditions under which they will be served, material was offered to the Court which indicated that whilst in custody and on protection MAK had been assaulted by other prisoners. It was put that MAK would not have appreciated the potential significance of this on sentence and that, in the circumstances, that should now be taken into account. As was noted at the time the matter was raised, the information as sourced did not denote that the event had any reference to the appellant's offences, although there may have been some apparent temporal nexus between it and some publicity about them. I do not consider that this is a matter of consequence in determination of the appellant's challenges to overall sentence. 82 Viewed in isolation, a comparison of minimum custody for accessorial offences of ten years against minimum custody of eight years for an aggravated sexual assault personally committed, does suggest incongruity, however, viewed in the context of totality of sentence (placing to one side for the moment the possible outcomes of grounds 1 and 4) I perceive nothing in the assessment, reasons or exercise of discretion by Sully J which would attract intervention by this Court. THE APPEAL OF MMK 83 The grounds of appeal relied upon by MMK are expressed: 1. " Ground 1: His Honour erred in characterising the offences as an 'objectively worst case'.

Ground 2: His Honour erred in accepting the Crown's assessment of the relative culpability of MMK and imposing upon MMK a sentence the same as that of his older brother MSK.

Ground 3: His Honour erred in the manner in which he accumulated the sentences.

Ground 4: His Honour erred failing to take into account that the appellant was a child.

Ground 5: His Honour erred in his assessment that the offences involved a breach of trust.

Ground 6: His Honour erred in increasing the sentence because of his assessment of the applicant's risk of re-offending.

Ground 7: The sentence imposed was manifestly excessive." 84 I deal first with the grounds (1 and 5) which have been adopted by the appellants MSK and MAK. 85 Ground 1 is focussed upon his Honour's finding that the offences committed on the complainants were "clearly within the worst category" of the crime which he referred to in the commonly used term "rape". 86 There is really no issue between the appellants and the Crown concerning applicable principles. His Honour cited R v Twala NSWCCA, unreported, 4 November 1994: 1. "… .to characterize any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime as distinct from subjective features mitigating the penalty to be imposed". 87 It was submitted that, as each offence must be considered individually, there was an absence of the character of "very great heinousness". An extract from Ibbs v The Queen 1987 163 CLR 447 was cited: 1. " When an offence is defined to include any of several categories of conduct the heinousness or otherwise of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case". 88 A written submission followed that citation stating "it is essential that generalities be avoided in any assessment of the offender's conduct". No doubt that is a valid observation and it is instructive to turn to the particular. It is already recognized that the liability of the appellants on various counts derived from a mixture of physical participation and being a joint entrepreneur. 89 Each appellant has been convicted on nine counts of offence contrary to s 61JA of the Crimes Act 1900 . The common requisite ingredients of every offence are forced sexual intercourse and the commission of such an act in company. The different categories of conduct within the scope of the provision are to be found in the possible circumstances of aggravation. There are three, articulated in s 61JA(1)(c): 1. " 61JA (1) A person

(c) (i) at the time of, or immediately before or after, the commission of the offence, maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or

(ii) at the time of, or immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or

(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.

SEVERITY OF SENTENCE 129 It would be difficult to exaggerate the seriousness of these offences. It was well within the scope of finding, as his Honour did, that they fell within the category of worst offences of rape although, as already noted, he treated the appellants more leniently than by application of the maximum prescribed sentence.

130 Counsel for MMK recognized that, in increasing maximum penalty, a legislature may be taken to have indicated that sentences should increase generally: Baumer v The Queen 1988 166 CLR 51. Section 61JA was legislated in 2001 and provided for a particular aggravated form of the existing offence of sexual assault. The offences by the appellants did not attract the operation of standard non parole period of fifteen years (applicable to a single offence) as they antedated the coming into effect of provisions on 1 February 2003.

131 What is significant is that each appellant was convicted of nine counts, each of which carried a prescribed maximum sentence of life imprisonment. Whilst each appellant must receive sentences reflecting what he did, and I have discussed the discrimination between liability for personal commission and as a joint entrepreneur, the overall gravity inevitably attracted substantial terms of custody.

132 Giving weight to the upholding of the ground concerning s 21A(2)(k) of the Sentencing Procedure Act, I remain of the opinion that the sentences in each case lay within the range of the sound exercise of discretion by Sully J.

133 It has been reiterated that it is an essential pre-condition of the exercise of power by this Court to quash a sentence and to impose another in substitution, that a positive opinion be formed that some other sentence is warranted in law and should have been passed: R v Simpson 2001 53 NSWLR 704.

134 The pre-condition is not in the case of any appellant fulfilled.

135 It follows that it is unnecessary specifically to deal with the issue of possible disparity raised in ground 1 of the appeal by MAK. Senior counsel for MAK drew attention to the fact that his client would be standing for sentence in respect of unrelated matters and, in the event that it was determined that his appeal should not succeed, he asked that the Court refuse leave to appeal in order not to foreclose a capacity to seek examination of these sentences in the context of others which may be received. The Crown did not desire to say anything in respect of the application. It should be granted.

136 I propose the following orders: THE APPEAL OF MAK

137 Leave to appeal refused. THE APPEAL OF MSK

138 Leave to appeal against sentence granted. Appeal dismissed. THE APPEAL OF MMK

139 Leave to appeal against sentence granted. Appeal dismissed.

140 HALL J : I have had the benefit of reading the judgment of Grove J. in draft. I agree with the orders proposed by his Honour and the reasons for those orders. **********

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