Regina v MS

R. Cogswell SC/D. Arnott (Crown) COUNSEL: D. Dalton (Applicant)

S. Kavanagh (Crown) SOLICITORS: David H. Cohen & Co. (Applicant)

IN THE COURT OF CRIMINAL APPEAL 2003/3064

STUDDERT J BELL J LATHAM J

Friday 16 September 2005 REGINA V MS Judgment 1 THE COURT: The applicant, MS, seeks leave to appeal against the severity of sentences imposed by his Honour, Judge Finnane QC (the Judge) on 6 September 2002. The applicant pleaded guilty to one count of aggravated sexual assault and one count of detain for advantage. Both offences were committed on 30 August 2000 against one complainant, Ms C. 2 The sentence imposed for the aggravated sexual assault count was one of imprisonment for eleven years and three months with a non parole period of six years and six months. The sentence imposed for the count of detain for advantage was imprisonment for a fixed term of three years and nine months. Both sentences commenced on 15 December 2000, allowing for the applicant's release to parole on 14 June 2007. 3 The facts upon which the Judge sentenced the applicant detailed the activities of a group of young men, including the applicant, and his brother, MoS, from a point in time when they encountered Ms C on a train on 30 August 2000 until she left their company and was taken by a co-offender, H, and others in a black car to another location where she was subjected to further sexual assaults and then in a red car to yet another site where the sexual assaults continued. It is not necessary to repeat all the facts as set out by the Judge in his remarks on sentence. Briefly, the complainant was approached by the group of young men, including the applicant, his brother, and the co-offender Mohammed Skaf, whilst travelling on a train from Belmore to Lidcombe. The complainant agreed to travel further to Bankstown, following an invitation to her to join the men for a smoke of marijuana . They all alighted from the train at Bankstown and proceeded to the Marion Street carpark. Mohammed Skaf had earlier taken the complaint's mobile phone and lured her into one of the toilets in the toilet block of the park, where she was detained. The complainant was told by Mohammed Skaf that she would not receive her phone until she engaged in sexual intercourse with him. The complainant refused and attempted to leave. However she was prevented from so doing and shortly thereafter Mohammed Skaf pushed the complainant up against the tiled wall of the toilet block, pulled down her skirt and underwear and engaged in penile vaginal intercourse with her. He then left the toilet block, whereupon the applicant came in. At this point, the complainant was trying to leave the toilet block. The applicant said "Don't you fucking say anything". He then pulled down her skirt with one hand and attempted to pull her top up. He then pulled her skirt and underwear completely off and told her to step out of them. He turned her around to face the wall and removed her top. He then grabbed at her breasts and tried to insert his fingers in her vagina. He then put a condom on, masturbated himself to a full erection and then forced his penis into her vagina. Following ejaculation, he withdrew his penis, pulled off the condom, threw it on the floor and said "fuck that was good". He then left the toilet block and further sexual assaults followed upon the complainant by others. Throughout this ordeal, the complainant was prevented from leaving the toilet block by various offenders who remained "on guard" outside. 4 The act of penile vaginal intercourse detailed above was the basis of the charge under s 61J of the Crimes Act 1900, to which a maximum penalty of twenty years imprisonment applied. The complainant's detention for advantage within the toilet block was the basis of the charge under s 90A of the Crimes Act 1900 for which the maximum penalty was one of imprisonment for twenty years or if the victim was released with no substantial injury, fourteen years' imprisonment. Whilst the Judge did not refer in terms to the maximum penalty applicable to the charge under s 90A, it is accepted that his Honour dealt with the matter on the basis that the lesser maximum penalty applied. 5 The applicant's sole ground of appeal was that the sentence imposed was, in all the circumstances, manifestly excessive. However, three features of the sentencing exercise were isolated by the applicant as demonstrative of the general ground. Those three features were as follows: i) That his Honour's overall starting point was excessive in that a starting point was adopted by reference to co- offenders, who had committed offences not only against the complainant, Ms C, but also against other complainants on other occasions.

ii) That his Honour erred in finding against the applicant that the offence of aggravated sexual assault was carefully planned and co-ordinated.

iii) That his Honour erred in setting the same head sentence for the applicant as for the applicant's brother and the co- applicant, H, in respect of like offences. 6 It is convenient to deal with the applicant's complaints in this regard under two discrete headings, namely parity and planning and co-ordination.

Parity 7 The applicant and the applicant's brother, MoS, were the subject of joint remarks on sentence delivered on the same day, that is 6 September 2002. Accordingly, the assessment of the applicant's criminality took place in the context of the various sexual assaults by the various offenders, including the applicant's brother, in the course of the evening of 10 August 2000 and the late afternoon of 30 August 2000. So much is made clear by the opening paragraphs of the remarks on sentence, whereby the Judge set the scene for the sentencing exercise which was to follow: [Bilal Skaf] was the leader of a brutal gang of rapists, who on three occasions, raped four young women. His activities and those of his gang spread terror in Sydney in August 2000, just before the commencement of the Olympic Games.

The gang consisted of varying numbers of men, up to about fourteen. Not all of them have been caught. Those who have been caught and brought to justice were either identified by the victims or pleaded guilty because evidence had been found to connect them with the offences.

The activities of the gang were organised by the use of mobile phones and there was a considerable degree of planning and co-ordination involved in each set of attacks.

As is common with rapists, the gang members treated each of their victims with callous indifference and considerable cruelty.

A was a member of this gang and in common with [the applicant, the applicant's brother, Bilal Skaf], Y, Chami, Hajeid, [Mohammed Skaf,] Z and H participated in rape episodes in which each of these offenders was involved. [The applicant's brother] participated in the rapes of Miss A and Miss B on 10th August 2000 and together with [the applicant], was one of the 14 rapists to attack Miss C on 30th August 2000.

The courts must attempt to protect society from the possibility that those who have been caught will engage in this type of activity again and the sentences which I impose have as their principal aim, the protection of society, but as my reasons will indicate, I also give weight to evidence that both of these offenders are remorseful, that they can be rehabilitated and that each of them has some intelligence problems which may result from lower than normal intellectual functioning, although this situation needs to be kept under review. The combination of these factors, together with the fact that they each pleaded guilty from an early stage, has resulted in my imposition of sentences which separately and in total are less than the sentences imposed on [Bilal Skaf] and Hajeid who expressed no remorse, called no evidence and offered no reason for me to exercise leniency in any way. The sentences are comparable to those imposed on H. 8 The co-offender Bilal Skaf was sentenced for his part in the offences of 10 August 2000 and 30 August 2000, whereas the co-offender Belal Hajeid, was sentenced for a number of offences committed on 10 August 2000 only. The co-offender, H, was sentenced for his part in a series of offences committed on 4 August, 10 August and 30 August 2000. However, H, unlike Bilal Skaf and Belal Hajeid, pleaded guilty to those offences. As far as this applicant was concerned, the sentences imposed on Belal Hajeid for the offences committed on 10 August 2000 would appear to have little relevance. It was no doubt a reference which was more apposite to the applicant's brother, who was to be sentenced for offences committed on 10 and 30 August 2000. 9 At ROS 14, the Judge returns to review the sentences imposed on the co-offenders, Hajeid, Chami, Bilal Skaf and H. His Honour said: On 23rd August, I sentenced H for his part in the events of 10th August and 30th August 2000, as well as for offences committed by him on 4th August 2002. I gave him a total head sentence of 25 years and a non parole period of 15 years. In imposing sentence, I gave him the benefit of a discount on sentence of 25% for his plea of guilty and I gave him a longer than usual period on parole, to reflect his contrition, remorse, and prospects of rehabilitation. The sentences also reflected these principles in that I cumulated some sentences only partially and I made many sentences concurrent with other sentences. I propose to approach the sentences for the offenders [MS and MoS] on the same basis. 10 At ROS 19 under the heading "General Legal Considerations", his Honour says: I have set out earlier in this judgment my views on the seriousness of the offence and the features that distinguish [the applicant and MoS] from [Bilal Skaf], Hajeid and Chami, but make their cases similar to that of H. Each of them pleaded guilty at a very early stage and is entitled to a discount of 25 percent of each sentence because of this. 11 Again at ROS 20 under the heading "Bankstown - 30 August 2000" the Judge revisits the question of parity in the following terms: Bankstown - 30th August 2000

Chami received 15 years for an offence of aggravated sexual intercourse without consent and 7 years for detention for advantage. However, the detention of Chami was worse than that effected by H, because Chami made threats with a weapon and made it possible for [Bilal Skaf] and another man to carry out a series of sexual assaults against Miss C in his car as he was driving. I consider that the sentences for these offences, committed by [the applicant and his brother], should be the same as for similar offences committed by [the applicant's brother] and H against Miss A and Miss B, ie 11 years and 3 months for aggravated sexual assault and 3 years and 9 months for detention for advantage. 12 The above remarks make it clear that his Honour approached the sentencing of the applicant for the offences committed by him on 30 August principally by reference to the detention offences and aggravated sexual assault offences committed by H and the applicant's brother on 10 August, having regard to the fact that they had pleaded guilty. It is significant, however, that his Honour also refers to the sentences imposed upon Chami for offences committed on 30 August, which were similar to the offences committed by the applicant. Chami was convicted after trial of one count of penile vaginal intercourse which occurred in the back seat of the red car at the industrial estate at Chullora and one count under s 90A, relating to the detention of Ms C in that car, including the production of what Ms C thought was a weapon in the course of the journey from Bankstown Trotting Club to Chullora. As his Honour noted, the objective gravity of the detention offence committed by Chami was greater than the objective gravity of the detention of Ms A and Ms B in Northcote Park for that reason. 13 It is appropriate then to turn to an examination of the offences committed by H and by the applicant's brother on 10 August. The facts in relation to the detention and sexual assault of Ms A and Ms B on 10 August at Northcote Park in Greenacre are set out at length in our judgement on the application for leave to appeal by H (H [2005] NSWCCA 282, par 12) Without repeating those facts in full, it is sufficient to note that H was sentenced in relation to two counts of detain for advantage, one each in respect of Ms A and Ms B, based upon the detention of each of those complainants within the park, over a period of some hours. In respect of each of those offences, H received a fixed term of three years and nine months' imprisonment. H was also sentenced in respect of three counts of aggravated sexual assault, only one of which was as a principal in the first degree (count 8). The Judge was asked to take into account two further offences on a Form 1 when sentencing H in respect of this offence. Those offences were two counts of common assault, one relating to Ms A and the other to Ms B. They related to the presence of H whilst each of the complainants was tackled to the ground by a co-offender. The sexual assault offence was constituted by H approaching Ms A and threatening to bash her if she did not give him a "head job". H threatened Ms A with a clenched fist, held the back of her head and grabbed her breasts. He forced her mouth onto his penis until he ejaculated on Ms A. H then walked away, saying "thanks for nothing you cheap slut". The offence was committed after Ms A had been forced to commit fellatio on three of the co-offenders and before she was forced to commit fellatio upon another co-offender. H received a sentence of eleven years and three months' imprisonment, with a non parole period of six years. 14 The applicant's brother was also sentenced for two counts of detention relating to the detention of Ms A and Ms B at Northcote Park. In respect of each offence, he received a term of three years and nine months' imprisonment. The applicant's brother was also sentenced for three counts of aggravated sexual intercourse without consent, two in respect of Ms A and one in respect of Ms B. However, only one of those counts was as a principal in the first degree. That was an act of forced fellatio committed on Ms A which followed the act of forced fellatio committed upon that complainant by H and another offender. When sentencing the applicant's brother on the offence committed as a principal, three further offences were taken into account on a Form 1. They were two charges of common assault and one charge of aggravated indecent assault. The aggravated indecent assault consisted of grabbing Ms A around the breasts while they were seated in the van between Chatswood and Greenacre. One common assault was committed as a principal in the second degree and the other common assault consisted of Ms A being tackled by the applicant's brother. The applicant's brother received a sentence of eleven years and three months, with a non parole period of seven years on this offence. 15 In so far as the applicant relies upon comparisons between the objective gravity of the offences committed by the other offenders on 30 August, in particular those offences committed on Ms C at other locations, including Bankstown Trotting Club and Chullora, and the asserted lesser objective gravity of the offences committed on 30 August by the applicant, we regard those comparisons of dubious value for the purposes of this appeal. Simply put, that was not the basis upon which the Judge approached the sentencing of the applicant. 16 We have observed in the course of our reasons on the appeals by the applicant's co-offenders, that his Honour adopted a starting point of fifteen years' imprisonment (before the application of the discount for a plea of guilty) for offences of aggravated sexual assault, without differentiating between penile-vaginal intercourse and fellatio. There is nothing inherently wrong with that approach: R v Andrews [2001] NSWCCA 428. What was required was a determination in each case as to where the various acts of sexual intercourse lay in the spectrum of offences falling within the definition of sexual intercourse: Ibbs v the Queen (1987) 163 CLR 447. The circumstances of an act of fellatio may place it in a position on that spectrum consistent with an act of penile-vaginal intercourse. For example, where the complainant's head is forced and held onto the offender's penis to the point of ejaculation into the complainant's mouth, while threats and insults are uttered, in the company of a number of other offenders who are waiting their turn, little may objectively differentiate such an offence from an act of penile-vaginal intercourse, absent overt threats where the offender wears a condom. We are not persuaded, for that reason, that his Honour necessarily fell into error by having regard to the offences committed by the applicant's brother and H on 10 August 2000, when determining the sentence to be imposed on the applicant for an offence committed on 30 August for an aggravated sexual assault offence of a different nature. 17 Nor are we persuaded that his Honour erred in referring to the offences committed by H and the applicant's brother on 10 August, in so far as those offences were committed against complainants other than Ms C. His Honour adopted the correct approach in fixing a sentence for individual offences which reflected the objective gravity of the conduct involved in those offences and thereafter reflected the totality of the criminality represented by sexual assaults on separate complainants by the partial accumulation of those sentences. 18 A further alleged source of disparity arises from the sentence imposed on the applicant's brother for the aggravated sexual assault on 10 August, committed as a principal in the first degree, after taking into account three further offences, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act). It was submitted that the applicant must entertain a legitimate sense of grievance, in that he received an identical sentence for an offence unaffected by the requirements of s 33 of the Sentencing Procedure Act. As we have noted elsewhere, the reflection of further offences in a sentence for a primary offence lies in the weight to be accorded to personal deterrence and retribution: Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSW CCA 518. It has not been doubted since R v Barton (2001) NSW CCA 63 that the application of s 33 of the Sentencing Procedure Act generally results in a longer sentence or greater penalty than would have been the case if a judge was sentencing only for the primary offence. The same potential disparity arises from a comparison with the sentence imposed upon H in respect of count 8 of the indictment presented against him, to which he pleaded guilty. The sentence imposed upon him was also imposed after taking into account two further offences on a Form 1, albeit they were not as objectively serious as the Form 1 offences committed by the applicant's brother. 19 The Crown's submission is that no disparity arises because his Honour took the offences on the Form 1 into consideration in respect of the applicant's brother and H, but did not see the need to increase the sentence for the primary offence in each case, beyond that which was considered appropriate to the criminality of the primary offence standing alone. Such an approach is within the exercise of the sentencing discretion where the total period of imprisonment "best meets the situation": Attorney General's application under s 37. 20 In order to resolve this issue, it is instructive to consider the sentence imposed upon Chami for the aggravated sexual assault offence committed against Ms C on 30 August. Given that a sentence of fifteen years' imprisonment was imposed following conviction after trial where no question of Form 1 offences arose, it is apparent that the Crown's submission as to the approach adopted by his Honour when sentencing H and the applicant's brother must be accepted. Accordingly, we are not persuaded that the applicant has a legitimate sense of grievance which calls for the intervention of this Court.

Planning and Co-ordination 21 The applicant contends that in so far as the Judge made a finding against the applicant to the effect that the offence of aggravated sexual assault was carefully planned and co-ordinated, this was not a feature of the offence committed by the applicant. The applicant submits that error has been demonstrated by his Honour's treatment of the applicant consistent with the characterisation of the offences committed by the applicant's co-offenders in these terms. 22 It has been noted above that his Honour referred to "the activities of the gang [being] organised by the use of mobile phones and …. a considerable degree of planning and co-ordination involved in each set of attacks" (ROS 1). That observation was entirely correct in so far as his Honour was referring to the context in which the applicant's offences were committed, namely that the applicant was one of fourteen offenders who sexually assaulted Ms C on 30 August 2000. The complainant's journey in the black car from Marion Street to the Bankstown Trotting Club, and then from the club to Chullora in the red car, was explained according to the Judge, by communication between the various groups of offenders by mobile phones. This was a reasonable finding of fact. Moreover, given that his Honour was also proceeding to sentence the applicant's brother, it was, in any event, necessary to refer to the circumstances surrounding the offences committed by the applicant's brother on 30 August, as well as on 10 August. 23 Following this general reference to the various offences committed by the "gang" in August 2000, his Honour referred to general sentencing principles before passing to the facts relating to the offences committed by the applicant's brother in Northcote Park, Greenacre on 10 August. His Honour then came to relate the facts pertaining to the offences in the Marion Street car park toilets at Bankstown on 30 August 2000. Referring to the circumstances in which Ms C encountered the group of men on the train, his Honour said: She was surrounded by [Mohammed Skaf] and a group of other young men, who included H, [the applicant, the applicant's brother] and A. All of them were friends, but clearly [Mohammed Skaf] was their leader. He approached her and asked her questions about herself, obviously trying to find out all about her. Others in the group touched her near the breasts and near her bottom. They crowded in on her, but she felt she should be pleasant to them and so she agreed to leave the train with them at Bankstown, following an invitation by [Mohammed Skaf] that she could go with them and smoke some marijuana. This invitation to smoke some marijuana, by coincidence or otherwise, was the same invitation as the one given to Ms A and Ms B on 10 August 2000. (ROS 12) 24 His Honour then related the progress of the group from Bankstown station to the streets of Bankstown, where Ms C rang a friend on her mobile phone. His Honour then notes that Mohammed Skaf took Ms C's mobile phone from her and induced Ms C to go with them to the Marion Street car park toilets. Mohammed Skaf was the first to rape Ms C. He was followed by the applicant. 25 At ROS 14, his Honour reviews the sentences imposed on the various offenders for offences committed on the various dates, principally for the purpose of assessing the applicant's criminality relative to the co-offenders. At ROS 15, his Honour says: [The applicant's brother] participated in the gang rapes on 10 and 30 August 2000. [The applicant] participated in the gang rapes on 30 August. As I have earlier observed, what occurred on 30 August was a series of gang rapes on that night. The crimes on 10 and 30 August 2000 were carefully planned and co-ordinated. The degree of planning and co-ordination by use of mobile phones distinguishes these crimes from other cases of gang rape that have been reported from time to time, which are often if not usually perpetrated by intoxicated men, who have seized an opportunity that has been presented to them. 26 Further, his Honour says that: The crimes were planned and premeditated. In each instance they involved gang activity and a selection of a helpless young female. 27 It is clear that his Honour's references to the degree of planning and co-ordination occurs in the context of a general discussion of the range of sentences imposed on a number of offenders for offences committed on a number of occasions. In particular, his Honour was dealing with the applicant and the applicant's brother in circumstances where the applicant's brother was a participant in the events of 10 August as well as 30 August 2000. The offences committed on 10 August 2000 against Ms A and Ms B also involved a degree of planning and co-ordination by the use of mobile phones. There is nothing in the Judge's remarks which provide a basis for concluding that the applicant was sentenced for anything other than his participation in the detention of and assaults on Ms C within the toilet block on 30 August, beginning with the encounter with Ms C on the train. 28 It is nonetheless appropriate to attribute to the applicant, as part of the group that approached Ms C on the train, an awareness of what was likely to occur when they arrived at the toilet block. The overt sexual overtures towards Ms C on the train, the personal nature of the questions she was asked and the deprivation of her mobile phone, all pointed to the instigation of sexual activity. To this extent, the applicant was part of a plan to entice Ms C from the train, to a place where he and his companions could detain her, so that they might each gratify themselves at her expense. 29 The errors identified by the applicant are not made out. There remains the question whether the sentence imposed on the applicant is manifestly excessive, bearing in mind that the sentence imposed for the detention offence was made wholly concurrent with the sentence imposed for the aggravated sexual assault offence. We turn to the applicant's subjective features. 30 The applicant's subjective case appears at ROS 16-17 [The applicant] is the youngest of three male children born to his parents. It would appear that the family is a close one. He was born in Australia on 13th December 1984. He was thus not quite 16 years old at the time he committed the offences for which he is before the Court. At present he is not yet 18 years old. He is strongly built and has adopted a protective role towards his elder brother, who was born on 7th December 1983. This arose from the dual facts that his brother is thin, not well built and has no fingers on his right hand, something which apparently has made him the butt of bullying all of his life.

[The applicant] was educated at a primary school in the Punchbowl area and later attended a local high school and then a special school which he left in year 10. He then enrolled in a panel beating course at Ultimo TAFE, and was doing that course at the time of his arrest on 15 December 2000. Since then he has been in Juvenile Justice facilities and has managed to achieve a School Certificate. Whilst in custody, he has done a number of TAFE courses in bricklaying and horticulture in a preliminary way, and various courses in art, garden maintenance, anger management and other courses that seem quite useful. He has obtained certificates, which I have seen.

Although assessed by a psychologist as having significant cognitive deficits, his performance at TAFE and other courses run by the Department of Juvenile Justice, suggest to the staff that the assessment by the psychologist may not truly reflect his level of ability.

When he was in Year 8 in High School and still living at home, he had difficulties at school, which seemed to lessen when he went to a special school.

He has a record for relatively minor matters involving loitering in shopping centres and similar matters.

They are of no significance from a sentencing point of view, but they are consistent with his having fallen in with undesirable companions and just hanging around, something which he talked about to Juvenile Justice staff. He has been assessed as having an impulsive personality, to have little insight into the behaviour that brought him into custody and to be at risk of acting again in an anti-social manner. However, he is willing to co-operate with staff in a continuing assessment process and to participate in treatment. It is also significant that his family seem to accept the seriousness of the offences and they are willing to assist in the rehabilitation process. Staff consider that he has the potential to be responsive to therapeutic intervention.

He is regarded as polite and co-operative and to be suitable for inclusion in the Sex Offenders Programme, which he can enter once he is sentenced and provided that he remains in a Juvenile Justice facility. He is well behaved and no danger to any of the other inmates or staff.

It seems obvious that he is taking full advantage of the programmes offered in Juvenile Institutions and that he would benefit from continuing his association with such programmes. I intend to direct that he remain in Juvenile Justice institutions until he attains the age of 21 years and I intend to recommend that he be given the opportunity to join the Sex Offenders Programme. 31 His Honour further noted at ROS 17-18 that the applicant had expressed limited remorse and appeared to have limited insight into the gravity of his offending. However, the applicant's early plea of guilty held some promise of a fuller appreciation of his conduct and reasonable prospects of rehabilitation. For those reasons, and taking into account the applicant's youth, his Honour found special circumstances justifying a non-parole period set at fifty-seven percent of the head sentence. 32 The applicant places considerable emphasis on the fact that, of all the offenders, he was the youngest. There is no complaint that the Judge placed insufficient weight on any other aspect of the applicant's subjective circumstances. Whilst the applicant was younger than his brother, the next youngest of all the offenders, the applicant in fact assumed the role of elder brother, owing to the particular physical traits of MoS. The applicant took precedence when the time arrived for each of them to enter the toilet block to sexually assault Ms C. 33 As to the applicant's age at the time of the commission of the offences, his Honour was acutely aware of the cautionary note contained in the judgment in R v AEM & Ors [2002] NSWCCA 58, lest considerations of youth overshadow considerations of denunciation, deterrence and retribution. The applicant's criminality was of a very severe order. His treatment of Ms C was appalling, no less appalling than the treatment she received at the hands of Mohammed Skaf, the first to have sexual intercourse with her in the toilet block. 34 Mohammed Skaf, who was 17 in August 2000, was sentenced for that act of penile-vaginal intercourse, following his conviction at trial, to a head sentence of seventeen years and a non-parole period of eleven years. A sentence of five years with a non-parole period of three years was imposed upon him for the detention of Ms C in the toilet block, to be served wholly concurrently with the former sentence. We regard these as wholly appropriate sentences. It follows that the applicant's sentence for the same offences, even allowing for his relative youth, plea of guilty and subjective circumstances cannot be said to be manifestly excessive. 35 The Court makes the following orders:-

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