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Jobs Classifieds -------------------------------------------------------------------------------- Services Advertise - print - online Delivery - paper - e-mail - handheld Subculture -------------------------------------------------------------------------------- Help Audio/video - NATIONAL The full judgement (References which might identify the offenders have been removed) THE DISTRICT COURT OF NEW SOUTH WALES CRIMINAL JURISDICTION JUDGE LATHAM 01/11/0096 - REGINA v A (jnr) & A (snr) & K SENTENCE HER HONOUR : The offenders, A (snr) and K each pleaded guilty on 12 June 2001 to 2 counts of aggravated sexual assault on indictment, committed whilst in each others company in the early hours of 5 September 2000. A (snr) asks me to take into account a further aggravated sexual assault on a Form One ; K asks me to take into account 4 further aggravated sexual assaults on a Form One. The offence of aggravated sexual assault under s 61J of the Crimes Act carries a maximum penalty of 20 years imprisonment. The offender A (jnr) pleaded guilty on the same day to one count of Detaining with Intent to Hold for Sexual Advantage in relation to one of the victims. That charge carries a maximum penalty of 14 years imprisonment, in the circumstances of this matter as conceded by the Crown, that is, where no substantial injury is occasioned to the victim during the detention. The following summary of the facts is taken from a statement of facts which the Crown tendered against each offender, together with a statement from each of the victims, two 16 year old girls, referred to as J and D respectively. The statements of the victims are qualified by Ex 1 on sentence, in that the pleas of guilty were accepted by the Crown on the basis that no knife was produced, nor were any threats made, to the victims before they entered the premises where the sexual assaults took place, and that the victims voluntarily went with the offenders to those premises. At about 1 am on 5 September 2000, J and D, who were waiting for a taxi in King George’s Rd at the entrance to the Beverley Hills railway station, reluctantly entered a vehicle containing the offenders, M and another young male. The occupants of the vehicle had offered the girls a lift home ; there were no trains running from Beverley Hills at that time of night and the young men seemed friendly. The vehicle was driven to a residential garage where M broke into a Ford Falcon. Both vehicles drove away at high speed, ultimately arriving at an address in Villawood, the home of the offenders A snr and K. The girls and the offenders (including M) entered the house ; the fifth unidentified male was no longer in their company. Thus far, there was nothing of an overtly hostile nature in the behaviour of the offenders towards the girls. It had been suggested that the girls sleep what was left of the night at the Villawood house and make their way home in the morning. Initially, the girls and the offenders sat in the lounge room where marijuana was consumed by A (snr). A (jnr) engaged J in conversation and allowed her to charge her mobile phone. She informed him that they were both tired ; they were taken to a bedroom towards the back of the house where they lay on two single beds which had been pushed together. A (snr) lay down next to J and commenced to hug her from behind, whilst A (jnr) stood nearby. J told A (snr) not to touch her, but he persisted for a short time before leaving the room. The A (jnr) remained in the room, lying next to the victims while they attempted to go to sleep. The A (snr) re-entered the room, and continued to fondle J. D left the room shortly thereafter in the company of the A (jnr). He took her to a front bedroom, locking the door from the outside ; she could hear him speaking to the other males outside the room. She attempted to open a window but found that it was locked. She was accompanied to the toilet by the A (jnr), who "stood guard" outside the bathroom. She returned to the front bedroom where she lay on a bed, A (jnr) laying next to her. In response to her request that she be permitted to leave, he replied "You kind of can’t", at the same time lifting a curtain from the window to reveal a male person outside the premises. She slept for some period of time, but woke to the sound of an angry conversation between A (jnr) and other male voices through the bedroom door. She was told they would have to leave the room. She was taken to the back bedroom, which was empty. Meanwhile, A (snr), K and M confronted J in the back bedroom. She started to cry and plead for help from K. A (snr) pulled out a knife. M locked himself and J in the bedroom, excluding the others. He had sexual intercourse with J without her consent before leaving the room, naked. Almost immediately, K entered the room naked and wearing a condom on his erect penis. He forced his penis into her mouth (offence 1 on the Form 1), before pinning her arms above her head and inserting his penis into her vagina (Count 1 on indictment). A further forced act of fellatio followed, after he had removed the condom (Count 2 on indictment). She was taken to the bathroom and told to have a shower. A (snr) entered the shower naked and forced his penis into the mouth of J (offence on the Form One), before instructing her to lay on a towel on the bathroom floor and inserting his penis into her vagina (Count 2 on indictment). He removed the condom he was wearing before ejaculating onto her stomach. J returned to the shower and he left the bathroom. K entered the bathroom, got into the shower naked and forced J to engage in an act of fellatio. He ejaculated into her mouth whilst holding the back of her head (offence 2 on Form One). At this stage, M entered the bathroom naked ; both he and K forced J to engage in a further act of fellatio upon both of them (offence 3 on Form One). J was then instructed to bend over and effectively straddle the bath ; K again inserted his penis into the mouth of J (offence 4 on Form One) while M penetrated her vagina with his penis from behind. J was allowed to dress and return to the loungeroom where K, A (snr) and M had gathered. She remained there with K while A (snr) and M went to the back bedroom. There, A (snr) told D that she would have to "fuck one of us before you go, otherwise you and your friend will never leave". D chose A (jnr) prompting A (snr) to say "I will be back in 15 minutes for my turn". A (jnr) and D were left alone in the room ; he tried to reassure D before speaking to the others outside. He returned, telling her that he had informed the others (falsely) that she was menstruating. He then took her to the front bedroom where he locked the door and lay down next to D, until 4:30am. M then entered the room ; A (jnr) left the room, saying to D "Be strong and say no". M then had vaginal sexual intercourse with D without her consent. After M left the room, both A (snr) and A (jnr) entered. A (jnr) was told to go and talk to M. D tried to leave the room, however A (snr) held the knife to her throat and became agitated at her refusal to have sex with him. He pushed her onto the bed, told her to remove her clothes and lay the knife across her chest while he tried to put a condom on his erect penis with one hand. He forced her legs apart, causing her considerable pain, and inserted his penis into her vagina, having intercourse with her until ejaculation (Count 1 on indictment). A (jnr) entered the bedroom as A (snr) left, saying to D "This is your fault, you could have said no". The victims were driven by K in company with A (jnr) to a service station, where J was told to purchase cigarettes. Whilst she was with the console operator, the car sped off. A short distance away, D was pushed from the car and walked back to the service station where D’s father was called. Later that day, the police executed a search warrant on the Villawood premises and the offenders were arrested. They all declined to comment on the allegations. These facts have only to be set out, in order to demonstrate the objective gravity of these offences. Leaving to one side A (jnr) who stands in a different position, there is little which distinguishes the objective criminality of the other three offenders ; they each indulged in a gross display of sexual misconduct, adopting a pack mentality whereby they exploited the victims’ fear, vulnerability and isolation from each other. Their individual behaviour towards the victims was reprehensible in itself, but one can only guess at the the victims’ humiliation in being passed from one offender to the next, in circumstances which suggest that these young men placed their reputation for sexual conquests above the standards of ordinary human decency. A (jnr)’s criminality is of a far lesser order. He took no part in the sexual assaults ; indeed, on one view of the facts referred to above, he adopted measures which were designed to prevent access by the others to D, for as long as possible. He was aware that A (snr) had a knife and was under no misapprehension as to the intentions of the young men towards the two victims. He stands to be sentenced on the basis that he detained D within the premises against her will, with the intention that she be kept there for the sexual advantage of A (snr), K and M . Before passing to a consideration of the sentencing principles which apply in this case, some recognition of the victims’ ordeal and the impact of the offences upon them is appropriate. The courts of this State are not blind to the well-documented, serious long-term psychological effects of sexual assault. In this particular case, the Court has received a Victim Impact Statement from one of the victims, D (part of Exs A, B, C and D). It describes her terror, her shame, the damage wrought by the offences to her notion of self-worth and to her family relationships. The absence of a Victim Impact Statement from J does not, of course, mean that the offences did not have a like effect upon her. The Court recognises the importance of allowing D a voice in these proceedings and is required to take into account the impact of the offenders’ behaviour upon her and upon J in sentencing the offenders, subject always to the maintenance of objectivity in the sentencing process : see R v RKB NSWCCA 30 June 1992. To the extent that the statement goes beyond the agreed facts upon which the offenders stand to be sentenced, I disregard those aspects of the statement. There is no evidence before me of any racial element in the commission of these offences ; there is nothing said or done at any stage by any of the offenders which provides the slightest basis for imputing to them some discrimination in terms of the nationality of the victims. The circumstances giving rise to the offences have all the hallmarks of an opportunistic encounter between a number of adolescent males, who had gone for a drive because they were bored (see Juvenile Justice report, part of Ex B), and two adolescent females, who found themselves stranded late at night, without transport home. These circumstances in no way provide any justification or excuse for the commission of the offences ; no responsibility or blame lies with the victims and any suggestion to the contrary should be rejected entirely. The sentences must reflect the objective gravity of the offences and the totality of the criminality represented by them. The starting point, in terms of the objective criminality, is the maximum penalty prescribed by the legislature for each offence. The maximum penalty in respect of any given offence is reserved for those cases falling within the worst category, that is, where the objective features demonstrate an extreme level of culpability or where the offence is so heinous that considerations of rehabilitation and the offender’s subjective features are rendered redundant. I do not consider that the sexual offences fall into that category, although it must be said that the objective features justify the Crown’s submission that the offences are at the upper end of the scale of severity. In R v Rushby [1999] NSWCCA 104, the Court described the offences as almost in the worst category. The forced vaginal and anal intercourse of a thirteen year old girl by an eighteen year old male and his sixteen year old male companion attracted sentences of eight years and six years respectively, following pleas of guilty. The Court noted the presence of a number of aggravating features not present in the instant case, namely that the victim was under the age of sixteen years, and she was tied up and left in a remote location after anal intercourse. The Court declined to interfere with the sentences. The Court also referred to R v Lewis NSWCCA 14 December 1993, where a sentence of eight years was upheld after a plea of guilty by the twenty year old applicant. He had vaginally raped a young female university student as she walked through a park on her way home from the railway station. The offenders K and A (jnr) are to be sentenced according to the terms of section 6 of the Children (Criminal Proceedings) Act 1987, which states :- A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles: (a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them, (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance, (c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption, (d) that it is desirable, wherever possible, to allow a child to reside in his or her own home, that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind. In R v Bus & AS NSWCCA 3 November 1995, the then Chief Judge at Common Law observed that :- "the relevance of the principles stated in s 6 to each individual case depends to a very large extent upon the age of the particular offender and the nature of the particular offence committed. An offender almost eighteen years of age cannot expect to be treated according to law substantially differently to an offender just over eighteen years of age. In both cases, the youth of the offender remains very relevant. Rehabilitation plays a more important role and general deterrence a lesser role. But that principle is subject to the qualification that, where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the function of the courts to protect the community requires deterrence and retribution to remain significant elements in sentencing him. ...... Of course, non-consensual sexual intercourse is regarded as an extreme form of violence." I note in passing that in Bus & S, what were described as very serious sexual assaults under s 61J, committed by a twenty year old male and a seventeen year old male in company, attracted sentences of six years and four and a half years respectively. K was two months short of his seventeenth birthday at the time of these offences, while A (jnr) was four months short of his eighteenth birthday. K must be sentenced according to law, since his offences are defined as "serious childrens indictable" offences by the Children (Criminal Proceedings) Act 1987. A (jnr) may be dealt with according to law or by way of the less harsh sentencing regime available under Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987. However, the offence under s 90A of the Crimes Act being a serious one, and the offender being very close to adult status, I have determined that he should be sentenced according to law. His counsel did not contend otherwise. A (snr) was nineteen years and five months of age at the time of the offences. Whilst he stands to be sentenced as an adult, his youth is also a factor which must be taken into account in the sentencing exercise. It is accepted that the pleas of guilty were entered at the first available opportunity to the indictments as presently framed. Accordingly, the offenders are to receive the benefit of a discount on the sentences otherwise to have been imposed which reflects the utilitarian value of those pleas. The level of that discount is to be determined by reference to the timing of the pleas and to the complexity inherent in the conduct of a trial of these offences. The strength of the Crown case has no bearing on that issue, although it may have a bearing on whether the offenders should receive any additional discount for contrition, over and above the contrition inherent in the pleas of guilty : R v Carter [2001] NSWCCA 245 ; R v Lo [2001] NSWCCA 271. In my view, the utilitarian value of the pleas in each case is high. The pleas were forthcoming as soon as the Crown was in a position to settle the indictment and the case at trial would have turned quite substantially on expert DNA evidence of considerable complexity, together with the evidence of the victims who would have been significantly traumatised by that experience. In addition, the trial itself would have been quite lengthy, in all likelihood occupying in excess of four (4) weeks of court time. Accordingly, I have determined to discount the sentences in each case by twenty percent (20%) on this basis. I turn then to the subjective features of each of the offenders and the sentences to be imposed. A (jnr) A (jnr) is the eldest child born in Australia to Lebanese parents. The family are practicing Muslims and alcohol is banned within the home. His parents have always provided a financially and emotionally secure environment. He attended State primary and secondary schools, leaving at the end of Year 10 after obtaining his School Certificate. He was employed for four (4) months in a shop owned by his cousin, then for a period of three (3) months with a family friend . He was negotiating employment with another family friend when he was arrested for the offence. He has attempted to gain entry to a TAFE course but did not pass the entrance exam. He has expressed a wish to re-sit the School Certificate to improve his prospects. He is a person of average intelligence who appears emotionally and psychologically well-adjusted. He has been using the time in custody to further his education, as demonstrated by Ex 5. The prospects for his rehabilitation are sound, especially since he enjoys the support of a loving family and provided that he actively pursues employment of a more permanent nature. The Juvenile Justice Report in relation to A (jnr) (part of Ex D) is frankly negative with respect to his prospects of rehabilitation and the presence of any real contrition. The author of the report concluded that he appeared "to be taking no responsibility for his offending and abusive conduct" and that he expressed no remorse for his behaviour or for the victims. His counsel informed me that he had instructed his client not to discuss the offence with officers of the Juvenile Justice Department, hence the tone of the report. Be that as it may, I accept that this offender is genuinely contrite and that he indicated as much to the author of the psychological report (Ex 6). Independently of the contents of that report, this offender’s efforts to minimise the harm visited upon the victim D mitigate the offence to which he has pleaded. Nonetheless, the length of the detention and its purpose are serious objective features of the offence. It does him no credit that he had been charged and was awaiting sentence for offences under the Motor Traffic Act when the instant offence was committed. I disregard that matter for the purposes of this sentencing exercise. There is no other criminal history. In these circumstances, the community interest in his further rehabilitation warrants greater emphasis than the community interest in retribution, albeit general deterrence must receive some recognition in the sentence to be imposed. Absent the plea of guilty and the offender’s contrition, a head sentence of two (2) years imprisonment would have been appropriate in the circumstances of this case. Whilst I am prepared to find special circumstances on the basis that it is the offender’s first custodial sentence, the alteration of the ratio between the Non Parole Period and the head sentence should only be slight, lest the Non Parole Period not sufficiently reflect the objective gravity of the offence. I propose therefor to sentence A (jnr) in the following terms :- On the charge of Detain with Intent to Hold for Advantage, you are convicted. I sentence you to a term of eighteen (18) months imprisonment, commencing on 7 September 2000 and expiring on 6 March 2002. I fix a Non Parole Period of twelve (12) months to date from 7 September 2000, expiring 6 September 2001. I direct that the whole of the sentence be served in a Juvenile Justice Centre. You are entitled to be released at the expiration of the Non Parole Period. K K emigrated from Lebanon to Australia in 1993. Up until that time he had lived with his paternal grandparents, while his immediate family lived in Australia. He joined his parents and four siblings in Sydney and undertook further primary and secondary education, leaving before the end of year 10. Since then he has been employed for approximately twelve (12) months , but had been unemployed for about two months prior to the commission of these offences. His father died suddenly , an event which significantly affected this offender and his brother A (snr). He has been applying himself to vocational courses whilst in custody. The Juvenile Justice Report (part of Ex B) notes that he exhibits a tendency to minimise the seriousness of the offences. The most extreme manifestation of this was an assertion that he was not familiar with the laws of Australia and that he was unaware that his behaviour towards the victim J was criminal. I reject such a suggestion out of hand, and I reject his account to the counsellor that he was ignorant of what the other young men were doing because he was waiting outside the house. It is difficult to reconcile these statements with his expressions of shame and anger, save to say that his remorse, such as it is, appears to be prompted by his present predicament rather than any real appreciation of the damage he has inflicted upon his victim. He impresses as emotionally immature and lacking the insight which is a prerequisite to rehabilitation. However, the Juvenile Justice personnel consider him capable of addressing these issues with the appropriate support and intervention. The two offences to which he has pleaded are aggravated by a further four (4) identical offences on a Form One. The sentences to be imposed in respect of the two offences on indictment must therefor reflect the totality of this offender’s criminality, that is, including the offences on the Form One. On any view of the offences, this offender showed a particularly callous disregard for the vicitm J. He forced her to fellate him a number of times, on one occasion ejaculating into her mouth and on another, forcing her to fellate him while she was being penetrated vaginally by another offender. Such criminality is appalling in one so young, especially given that he comes before the Court with no prior convictions at all. The sexual assaults were however committed in the course of one extended episode, so that the sentences for the two offences on indictment should be served concurrently. Absent the pleas of guilty, an effective head sentence of 7 years would be appropriate to the circumstances of these offences, taking into account the offender’s youth and subjective circumstances. I have found special circumstances based upon the offenders need for ongoing supervision and the fact that he will be serving his first custodial sentence. Accordingly, I propose to sentence K as follows :- On each of the offences of Aggravated Sexual Assault, you are convicted. I sentence you to a term of imprisonment of five years and seven months (5yrs 7 mths) in respect of each offence, both sentences to commence on 7 September 2000 and to expire on 6 April 2006. I fix a Non Parole Period in respect of each sentence of three years six months (3 yrs 6 mths) to date from 7 September 2000 and to expire on 6 March 2004. I direct that the whole of the sentence be served in a Juvenile Justice Centre and that the offender be subject to the supervision of the Juvenile Justice Department during the Parole period. In sentencing the offender on count one in the indictment, I have taken into account the offences on the Form One. A (snr) A (snr) is the eldest child born to parents of Lebanese extraction in Sydney. He enjoyed a conventional, loving and supportive upbringing in a Muslim family. He attended local State primary and secondary schools until leaving after obtaining his School Certificate in 1997. He had attempted to return to school in 1998 to obtain his Higher School Certificate, but gave up, principally because the sudden death of his father left him grief-stricken and unmotivated. His father had in fact died in the offender’s arms and the circumstances surrounding the event continue to affect the offender. In 1998 and 1999 the offender readily found employment . He travelled to Lebanon . He was unemployed at the time of the commission of the offences. He commenced to abuse alcohol and cannabis after the death of his father and had consumed cannabis on the evening of the offences. He is presently engaged to be married . He expressed remorse for his actions to the author of the psychological report (Ex 2) and professed to be a changed person since his incarceration. He has undertaken a number of vocational and self-development courses in custody. His criminal history commences in 1998 with traffic offences, and includes offences of dishonesty and property offences in 1999. At the time of the commission of these offences, he was subject to two recognisances, one for two years, granted in November 1998 and the other for one year, granted in December 1999. His avowed rehabilitation should therefor be viewed against a background of continuing disobedience to the law. The offences are further aggravated by an identical offence on a Form One. The instant offences represent a dramatic escalation of criminality on his part, although it is not unknown for youthful offenders to turn the corner following their first taste of an adult gaol. At this stage, his prospects of rehabilitation appear guarded. I find special circumstances based upon the fact that he will require supervision to effect his re-integration into the community and because of the imposition of his first custodial sentence. However, as has already been observed, the objective gravity of these offences must find expression in the Non Parole Period. Absent the pleas of guilty, I regard an effective head sentence of seven years and six months (7 yrs 6 mths) appropriate to the objective and subjective circumstances of the offences. The sentences will be served concurrently for the reasons referred to in the sentencing of K. Accordingly, I propose to sentence A (snr) as follows :- On the two charges of Aggravated Sexual Assault, you are convicted. I sentence you on each count on indictment to a term of imprisonment of six years, both sentences to date from 7 September 2000 and to expire on 6 September 2006. I fix a Non Parole Period in each case of four years to date from 7 September 2000 and to expire on 6 September 2004. You are eligible for release at the expiration of the Non Parole Period. In passing sentence on the second count on indictment, I have taken into account the offence on the Form One. 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