Regina v Belal Hajeid [2005] NSWCCA 262 (16 September 2005)

Last Updated: 4 April 2008

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Belal Hajeid [2005] NSWCCA 262



FILE NUMBER(S):
2002/2651

HEARING DATE(S): 26/7/05, 27/7/05

JUDGMENT DATE: 16/09/2005

PARTIES:
Belal Hajeid (Applicant)
Regina (Respondent)

JUDGMENT OF: Studdert J Bell J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0749

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

COUNSEL:
S. Odgers SC (Applicant)
R. Cogswell SC / D. Arnott (Respondent)


SOLICITORS:
SE O'Connor (Applicant)
S Kavanagh (Respondent)

CATCHWORDS:
Criminal law
application for leave to appeal against sentences
detention of complainants for advantage
assault
aggravated sexual intercourse without consent (in company)
accessorial offences and offence as principal in the first degree
whether errors in findings and approach by sentencing judge
youth
whether sentences manifestly excessive.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002

DECISION:
1. Grant leave to appeal
2. Allow the appeal and quash the sentences imposed in the District Court. In lieu thereof the applicant is sentenced to the following terms of imprisonment
Count one (detain for advantage - Ms A) a fixed term of imprisonment for five years to date from 20 December 2002. That sentence will expire on 19 December 2007
Count four (assault - Ms A) a fixed term of imprisonment for two years to commence on 20 December 2001 and to expire on 19 December 2003
In respect of counts five, six, seven, eight and nine (aggravated sexual intercourse without consent - Ms A) imprisonment for eleven years to commence on 20 December 2002. These sentences will expire on 19 December 2013. In respect of each of these sentences there will be a non-parole period of seven years. The non-parole period for these offences will expire on 19 December 2009
Count two (detain for advantage - Ms B) fixed term of imprisonment for five years to date from 20 December 2005. This sentence will expire on 19 December 2010
Count eleven (assault Ms B) fixed term of imprisonment for one year to date from 20 December 2005. That sentence will expire on 19 December 2006
Count twelve (aggravated sexual assault - Ms B) imprisonment for thirteen years to date from 20 December 2005. That sentence will expire on 19 December 2018. Specify a non-parole period of eight years to date from 20 December 2005. The first date upon which the applicant will be eligible for consideration of release to parole is 19 December 2013


JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2002/2651

STUDDERT J

BELL J

LATHAM J

Friday 16 September 2005

Regina v Belal Hajeid

Judgment

1 THE COURT: This is an application for leave to appeal against the severity of sentences imposed on the applicant following his conviction for a series of sexual offences committed by him and a number of other men on two complainants, Ms A and Ms B, in a park at Greenacre on 10 August 2000. He stood trial with two co-offenders, Bilal Skaf and Mohammed Ghanem.

2 The applicant was aged eighteen years and nine months at the date of the offences. On 14 June 2002 he was sentenced by his Honour Judge Finnane QC (the Judge) to sentences that in the aggregate amounted to twenty-three years’ imprisonment. An effective non-parole period of fifteen years was specified.

The facts

3 On the evening of Thursday 10 August 2000 the complainants were together browsing in the shops in the mall at Chatswood. Around 9:00pm they were approached by a group of eight young men, which included the applicant. They agreed to accompany the young men on the understanding that they would be given some marijuana to smoke at a nearby location and that thereafter they would be given a lift to their homes. They got into a white van with four of the men while the remaining four, including the applicant, got into a red car. Before leaving the car park of the shopping centre, the men in the red car spoke in Arabic with the men in the white van.

4 The two vehicles travelled from Chatswood to Northcote Park, Greenacre. During the course of the journey the occupants of the white van maintained mobile telephone contact with the occupants of the red car. The white van was the first to arrive at the park. By this time it was after 11:00pm. The park was an in isolated location unfamiliar to the complainants.

5 On arrival Bilal Skaf took Ms A to one part of the park while a co-offender took Ms B to another part of the park. Subsequently both complainants were sexually assaulted by being forcibly required to engage in acts of oral intercourse with various of the young men. Ms A had been assaulted in this fashion by Bilal Skaf before the red car in which the applicant was travelling arrived at the scene.

6 The red car pulled up behind the white van and the applicant and his three companions got out of the car and commenced running towards Ms A, who had just broken off from an act of forced oral intercourse with Bilal Skaf. She was tackled to the ground by the four men and kicked about the legs. She was then pulled to her feet and one of the men picked her up on his shoulder and threw her into some bushes. She was screaming and crying at the time. The applicant was one of the men who participated in this assault.

7 After the assault Ms A was approached by Bilal Skaf, who forced her to engage in oral sex with him for a second time. At the conclusion of this activity she walked away and the men from the red car, including the applicant, approached her and threatened her with violence. Thereafter she was subjected to non-consensual oral sex with four men; described as “the fat man”, the “WRX man”, “the man with the condom” and “the man with the ponytail”. The applicant was present aiding and abetting each of these assaults. Bilal Skaf and the three other men from the white van were nearby in the park.

8 Thereafter the four men from the red car surrounded Ms B and demanded that she give them oral sex. The applicant grabbed her by the arm and pulled her behind the toilet block. Here he demanded that she give him a “head job”. She protested, “no, I want to go home” to which he responded, “I’ll take you home after you have given me a head job”. Again Ms B refused. She tried to walk away and she was assaulted by another man. The applicant then took hold of her and forced her behind the toilet block and onto her knees. He held her head and put his penis into her mouth and he ejaculated into her mouth. Following this he and the other men from the red car left the park.

The offences and the sentences

9 The applicant was convicted of ten offences arising out of his role in these events. Seven offences related to the complainant, Ms A. Each of the sentences imposed with respect to the offences involving Ms A were concurrent and fixed to commence on 20 December 2001.

10 The first was an offence under s 90A of the Crimes Act (as it then stood) of detaining Miss A for the advantage of the applicant, his co-accused and four other males (count one). This offence carried a maximum penalty of imprisonment for twenty years unless the Judge was satisfied that the victim was released without suffering substantial injury, in which case the maximum penalty was imprisonment for fourteen years. It would seem the Judge approached the matter on the basis that the lesser maximum applied. The period of the detention was the time between the applicant’s assault on Ms A and when he left the park. He was sentenced to a fixed term of imprisonment for five years for this offence.

11 The second offence involving Ms A was common assault. This is an offence provided by s 61 of the Crimes Act and has a maximum penalty of imprisonment for two years (count four). This was the assault in which Ms A was tackled to the ground and kicked by the four men from the red car. It was the Crown case that the applicant was either the tackler or that he was present, aiding and abetting the tackler. He was sentenced to a fixed term of two years’ imprisonment for this offence.

12 The applicant was convicted of five counts of aggravated sexual intercourse without consent in which the complainant was Ms A. These offences are provided by s 61J(1) of the Crimes Act and have a maximum sentence of imprisonment for twenty years. The circumstance of aggravation in each case was that the offence was committed in company. In each instance the applicant’s liability was as a principal in the second degree, in that he aided and abetted the principal offender by his presence and willingness to assist. For each of these offences the applicant was sentenced to a term of imprisonment of fifteen years. A non-parole period of eight years was specified in each case (counts five, six, seven, eight & nine).

13 The applicant was charged with three offences relating to the complainant, Ms B. The sentences imposed for these offence were concurrent and were fixed to commence on the expiration of the non-parole period specified for the offences involving Ms A. Thus each of these sentences will commence on 19 December 2009.

14 The first offence relating to Ms B was that of detaining her for the advantage of the applicant, his co-offenders and four other men. This was a charge under s 90A and the Judge approached the sentencing of the applicant for it on the basis that the maximum penalty was imprisonment for fourteen years. The period of the detention the subject of the offence was between the time of the assault on Ms A until the applicant left the park. He was sentenced to a fixed term five years’ imprisonment for this offence (count two).

15 The second offence that related to Ms B was one of common assault under s 61. This was the incident in which the applicant grabbed Miss B by the arm and pulled her around to the back of the toilet block. He was sentenced to imprisonment for two years for this offence (count eleven).

16 The third count involving Miss B was an offence of aggravated sexual intercourse without consent, pursuant to s 61J(1). The circumstance of aggravation was that the offence was committed in company. The applicant’s liability for this offence was as principal in the first degree. This was the incident in which he forced Ms B to fellate him. He was sentenced to a term of fifteen years’ imprisonment for this offence. A non-parole period of seven years was specified. The first date on which the applicant will be eligible for consideration of release on parole is 18 December 2016.

The grounds of appeal

17 The applicant challenged the sentences on the three grounds:

1. The sentencing judge erred in the factual basis for sentence.

2. The sentencing judge erred in failing to take into account the youth of the applicant in relation to the determination of head sentences.

3. The sentences are, individually and in their combined effect, manifestly excessive.

Ground 1: The sentencing judge erred in the factual basis for sentence

18 In the course of his remarks the Judge said this:

“I cannot be sure precisely when the plan that these eight men should sexually assault their two victims was hatched, but the facts establish beyond reasonable doubt, in my opinion, that the plan had been agreed upon before the van got to the park at Greenacre. I come to this conclusion because there was evidence in the trial, which was in no doubt, that there was almost constant communication between the men in the two vehicles from the time they left Chatswood and the time they arrived at Greenacre. This communication was by mobile phone calls. Some of it was in English but much of it was in Arabic.

In my opinion, the almost constant telephone communication, together with the fact that the men in the red car, as I shall recount, arrived at the park at Greenacre just after X had told Miss A she would be bashed if she did not have oral sex with him, enables me to conclude beyond reasonable doubt that the crimes committed by Hajeid and his companions were carefully planned and well co-ordinated” (ROS 2.7-3.5).

19 It was submitted on behalf of the applicant that it had not been open to the Judge to find on the criminal standard of proof that the applicant was a party to a plan to sexually assault the two victims that had been agreed to prior to the arrival at the park. It was acknowledged on the applicant’s behalf that the intention to have sexual intercourse with the two complainants with or without their consent was established at the time of the assault on Ms A, but this was said to leave open that it may not have been formed prior to that time.

20 This submission has an air of unreality to it. The two complainants were driven to the park at night by the four young men in the white van and very shortly after their arrival each was subjected to sexual assault. As soon as the red van arrived its occupants joined in these assaults. This arrival at the park was coordinated by the use of mobile telephones. The Judge’s finding was open. Ground 1 fails.

Ground 2: The sentencing Judge erred in failing to take into account the youth of the applicant in relation to the determination of head sentences

21 In written submissions filed on the applicant’s behalf it was said:

“The Crown conceded that it was appropriate to take into account the applicant’s youth when determining sentence, notwithstanding the seriousness of the offences (T 48.10 on 3.5.02).

The sentencing judge stated that he would take into account the age of the applicant in fixing the non-parole period (RS 15.2). He stated that this was “how I intend to take [the youth of the offender] into account” (RS 16.3). The inescapable conclusion is that he erred in not taking it into account in respect of the head sentences” (WS para 6-7).

22 At the sentence hearing the Crown Prosecutor referred the Judge to the decision in R v Pham and Ly (1991) 55 A Crim R 128 per Lee CJ at CL at 135 for a statement of the principles to be applied when sentencing young persons for offences of violence. The Crown Prosecutor also referred to the decisions in R v AEM Snr; KEM; MM [2002] NSWCCA 58 and R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152, in support of the submission:

“So that whilst the youth, the Crown does not submit youth ought to be given no weight because that’s not the submission. It is submitted that your Honour would have those principles identified in Pham and Ly and Bavadra touching upon youth, youthful offenders committing serious offences in mind when assaying the weight to be given to the relative youth of this particular prisoner (03/05/02 T 48.9-16)”.

23 The Judge referred to the applicant’s age on more than one occasion in the course of his remarks:

“However, I do accept that there are special circumstances in this case arising from the age of Hajeid and what I would regard as a previous good character. I do intend to make allowance for this in fixing a non parole period” (ROS 15.3).

“The Crown also conceded that the youth of the offender had to be taken into account. I agree, and I have already indicated as to how I intend to take that into account” (ROS 16.3).

“He is young and of previous good character and there is nothing in his background to show how he got involved in these offences” (ROS 18.10-19.1).

“Because of his age and previous good character, and the prospects of some rehabilitation, I intend to find special circumstances and to reduce the non-parole period” (ROS 24.5).

24 In the applicant’s submission the passage at 16.3 above makes clear that his age was only taken into account in determining the length of the non-parole periods. This was said to bespeak error because the factors that are relevant to the determination of the non-parole period are the same factors that are relevant to the determination of the sentence: R v Bugmy [1990] HCA 18; (1990) 169 CLR 525. As their Honours made clear in Bugmy, different weight may be given to factors in fixing the non-parole period.

25 At the date of sentence the Judge was required to set the term of the sentence and then to specify the length of the non-parole period. The latter was to be not less than three-quarters of the sentence unless the Judge decided that there were special circumstances for it being less: s 44(2) Crimes (Sentencing Procedure) Act 1999. Although s 44 did not require that the non-parole period bear a fixed proportion to the sentence in the absence of special circumstances (since it was open to the sentencer to impose a non-period that was more than 75 percent of the sentence) it was common for the non-parole period to be three quarters of the sentence. In such cases the factors that bear on the determination of the sentence necessarily bear on the length of the non-parole period and to the same degree. The requirement that a sentencer find that there are special circumstances before specifying a non-parole period that is less than three-quarters of the sentence means that one or more subjective factors may be given greater weight in the determination of the non-parole period than in the determination of the sentence.

26 The significance of youth in sentencing juveniles and young adults is that in some cases it will admit of little weight being given to a number of the purposes of punishment in favour of promoting the offender’s rehabilitation. In a case such as the present, where the Judge determined to impose sentences that were intended to denounce the crimes and to deter the applicant and other young men who may be minded to engage in group sexual attacks on young women, the offender’s youth could not be given weight in this way.

27 His Honour’s remarks read in context make clear that he gave little weight to the fact that the applicant was a young offender in fixing the sentences and significant weight to this consideration in finding that there were special circumstances and in the determination of the length of the non-parole periods. However, to take from the remarks that his Honour paid no regard to the applicant’s age as one of the mix of factors to be taken into account in deciding the sentences is to adopt an overly literal approach to the passage at ROS 16.3. It ignores the fact that the Judge returned to the applicant’s age in a different context, when he noted that he was a young offender of previous good character (at 18.10).

28 Senior counsel for the applicant relied on the analysis of the significance of youth as a factor in sentencing for sexual offences in R v AN [2005] NSWCCA 239. The offender in that case was a child aged thirteen years. This applicant was an adult, albeit a young man just shy of nineteen years. The considerations to which Howie J referred in AN at [52] do not arise in this case.

29 The approach that the Judge took to the applicant’s youth conformed to the discussion in R v AEM at [96] – [102] of the principles to be applied in sentencing young persons for offences of violence such as the present offences. There was nothing in the evidence to suggest that the applicant’s youth and immaturity relevantly affected his ability to appreciate the nature and extent of his criminal wrongdoing. These were offences carried out for the sexual gratification of the applicant and his young associates. Ground 2 fails.

Ground 3: The sentences are, individually and in their combined effect, manifestly excessive

30 In support of his challenge of manifest excess, the applicant complained that the Judge found his offences to be “of the worst type”, notwithstanding that the Crown had conceded that individually they were not as serious as the offences in AEM. The Judge said this (ROS 13.6 –14.3):

“But where the sex is accompanied by threats of violence and was carried out by eight gang members, in my opinion it must be considered to be a crime of the worst type.

I do not accept at all that Hajeid’s offences can be regarded as lower end of the scale offences. In my opinion, because of the aggravating feature of each offence and because each was an offence committed jointly with his co-accused, each offence has to be regarded as an offence of a very bad type.

I accept that no knives or weapons were used, as they sometimes are in offences of this type, but very real threats, accompanied by very real violence, was used on two young, very vulnerable, defenceless young women, who were on their own in a lonely park, in an unknown area far from home. Each offence was calculated to degrade and humiliate, as well as to terrify the victims.

The fact that there were eight men involved in these offences, in my opinion, makes them every bit as bad as an offence where one man threatens the use of a weapon.”

31 The Judge’s remarks do not support the submission that the applicant was sentenced on the basis that his offences fell within the worst category of offences of aggravated sexual assault. His Honour considered these offences to fall in the upper range of seriousness for offences of aggravated sexual assault. We consider that he was right in this assessment.

32 The applicant submitted that it was not open to have regard to the fact that the offences were committed in circumstances in which he was company with seven other young men since the circumstance of aggravation that was relied upon to bring them within the provisions of s 61J(1) was that they were committed in company. This submission should be rejected. The extent and nature of the company and the way in which the numbers of offenders add to the menace of the occasion is plainly relevant to the assessment of the seriousness of the offence: R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 per Spigelman CJ at [107].

33 The Crown took issue with the contention that it had conceded that these offences were to be viewed as being less serious than those in AEM, and pointed to the submissions that had been made by the Crown Prosecutor concerning AEM (3/5/02 T 41.16):

“Absent a knife et al evidenced in AEM, the Crown can not submit that the circumstances of each individual offence are as serious as some of the circumstances of some of the offences in AEM. However as against that this prisoner stands to be sentenced for a significantly larger number of offences so that – that of course doesn’t – it’s not a mathematical proposition the Crown’s advancing. It’s simply the observation that whilst there may be points of distinction which can be legitimately drawn there must, of course, always be a proportionality between the overall criminality for which an offender stands to be sentenced and the particular criminality involved in the commission of any one of the offences as points of distinction.”

34 In the Crown’s submission the Judge’s approach to the assessment of the seriousness of the applicant’s offences was consistent with the stance that it had taken. In any event, the Crown’s position is that the Judge has not been shown to have erred in the assessment of the seriousness of these offences and he was not bound by any concession made by it: R v Scott [2005] NSWCCA 51 at [26]; GAS v R [2004] HCA 22; 217 CLR 198.

35 The Judge found the applicant’s offences to be worse than those in AEM because of the large number of s 61J(1) offences and the “general circumstances of violence, threats and terror” to which he had earlier referred (ROS 22.2). In AEM the two complainants were threatened at knifepoint. On the applicant’s behalf it was put that there was no evidence that he had made any threats of violence, nor that he had been present or heard the making of threats by the co-offenders. He was one of four young men who tackled Ms A to the ground and kicked her before one of their number threw her over his shoulder and from there into some bushes. The Judge found these assaults to have been both violent and calculated to cause fear and alarm. He was satisfied beyond reasonable doubt that those involved in their commission intended to achieve a total physical domination of Ms A and to crush any resistance that she might have had (ROS 7.3). The submission that there was no evidence that the applicant made any threats of violence loses its force when regard is had to that finding, which was not challenged.

36 In AEM this Court reviewed the pattern of sentencing for offences of aggravated sexual assault contrary to s 61J(1). The sentences imposed on the respondents to the appeals in that case represented the lowest sentences that could properly have been imposed (at [145]). The Judge’s assessment that the applicant’s offences were worse than those of the offenders in AEM by reason of their number and that they occurred in the context of degrading assaults upon the two complainants involving eight offenders is one about which minds might reasonably differ. We do not find that his Honour erred in coming to the conclusion that he did.

37 The Judge imposed sentences of fifteen years for each of the s 61J(1) offences. This was submitted to betray error since the applicant’s involvement in the five offences involving Ms A was as a principal in the second degree. It was submitted there was no justification for the imposition of sentences comparable with the sentences imposed on co-offenders for offences in which they were being sentenced as principals in the first degree.

38 The Crown submitted that, while the roles of the parties involved in a joint offence is a relevant consideration, there is no universal principle that the culpability of the aider and abetter is less than that of the principal offender justifying a lesser penalty: GAS at [23]; R v Blake [2003] NSWCCA 113. In GAS Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ at [23] observed:

“a manipulative or dominant aider and abetter may be more culpable than a principal. And even when aiders and abettors are less culpable, the degree of difference will depend upon the circumstances of the particular case”.

In this case it was not suggested that the applicant was the dominant member of the group nor that he instigated their activities that night.

39 The Judge considered that each of the offenders (putting Bilal Skaf to one side in light of the finding as to his leadership role) should be sentenced to the same term for each s 61J(1) offence regardless of whether his role was as the principal in the first or second degree. These were offences carried out in company in which the presence of the other men, including the applicant, standing by while Ms A was in turn forced to fellate Bilal Skaf (for the second time), the WRX man, the man with the condom, the fat man and the man with the pony tail added to her humiliation, terror and despair. While we would favour discriminating between the offences on the basis of whether they were committed as the principal or as an accessory, his Honour’s assessment that the offences in which liability was accessorial were as serious as those in which it was as the principal would not, of itself, demonstrate error.

40 The Crown acknowledged fifteen years’ imprisonment to be severe. In the Crown’s submission when regard is had to the sentences imposed by this Court in AEM as being the least possible sentences that could properly have been imposed on those offenders, it could not be said that the sentences for the 61J(1) offences committed against Ms A were outside the range of discretion.

41 It is not open to this Court to substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion differently: Markarian v R [2005] HCA 25; 79 ALJR 1048 per Gleeson CJ, Gummow, Hayne and Callinan JJ at 1055, [28]. The s 61J(1) offences committed against Ms A were objectively offences of great seriousness. She was an eighteen year old girl who had been lured to an isolated and unfamiliar location late at night and there subjected to a series of degrading sexual assaults carried out in circumstances calculated to further humiliate her. Nonetheless, sentences of fifteen years’ imprisonment imposed on a young offender of prior good character for offences in which his liability was accessorial call for careful consideration before they might be said to be within the range. It is not necessary to express a concluded view on this question, since the individual sentences are to be considered in light of the challenge to the overall sentence.

42 The Judge imposed a sentence of fifteen years’ imprisonment in respect of the s 61J(1) offence committed against Ms B, in which the applicant was the principal. The sentence for this offence was wholly accumulated on the non-parole period for the sentences imposed with respect to the s 61J (1) offences involving Ms A. The non-parole periods in each instance were fixed in a proportion less than seventy-five percent of the sentences. His Honour further reduced the non-parole period for the offence involving Ms B to seven years. Nonetheless, the effect was to produce an aggregate sentence of twenty-three years’ imprisonment with a non-parole period of fifteen years.

43 In the applicant’s submission it was an error to wholly accumulate the sentences for the offences involving Ms B since it paid insufficient regard to the principle of totality.

44 The principle of totality in sentencing was explained in Mill v R (1988) 166 CLR 59 per Wilson, Deane, Dawson, Toohey and Gaudron JJ at 62-63:

“The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed (1979), pp 56-57, as follows (omitting references):

‘The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is `just and appropriate'. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[‘]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.’

See also Ruby, Sentencing, 3rd ed (1987), pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.”

45 These offences formed part of a single episode of criminal offending. The circumstance that they involved two victims called for a degree of accumulation. At issue is the question of whether an accumulation of eight years produced an overall sentence that was manifestly excessive. Taking into account the pattern of sentencing for s 61J(1) offences reviewed in AEM, this contention has been made good. An effective sentence of twenty-three years’ imprisonment imposed on a young man of prior good character for the totality of this criminal behaviour in our view exceeded the bounds of discretion. The Judge erred in imposing sentences for the

s 61J(1) offences that were, at the least, at the top of the range and in then determining to wholly accumulate the sentences for the Ms B offences on the sentences for the Ms A offences.

Re-sentencing

46 It is necessary for this Court to re-sentence the applicant. He did not give evidence in the trial or at the sentence hearing. A report prepared by Ms Duffy, a psychologist, was tendered in his case. The account of the applicant’s history is drawn largely from that report. The applicant left school at the completion of Year 11 having performed poorly. He tended to give excuses for this blaming it on external factors such as the quality of teaching at his school. During the course of personality testing he had been inclined to respond before Ms Duffy had an opportunity to complete the question. She observed that it had not been easy to obtain a clear picture of his psychological functioning, as distinct from the impression that the applicant wished to create. His results were below average in intelligence testing on measures of vocabulary and of non-verbal skills. He had brief periods of employment prior to being taken into custody in connection with these offences. He had subsequently been released on bail subject to strict reporting conditions. He had not been employed during that period.

47 Ms Duffy reported by way of conclusion that:

“Belal’s presentation at our interview and the results of objective personality assessment indicate a person who may reveal a general naivety about psychological matters including a possible deficit in self-knowledge. He would like to present himself as a well functioning individual and is concerned with being seen by others as composed, virtuous and conventional in his behaviour...The general and overwhelming impression of Belal is of a person who is not likely to admit any faults or areas of transgression. He appears to cocoon himself in justifications and rationalisations to bolster his own self esteem. In this way, self exploration would be difficult for him. He would thus be resistant to seeking any counselling or help with any problems” (page 7).

48 A pre-sentence report dated 9 April 2002 was also in evidence. The author reported as follows:

“He presented as concerned to leave the best impression he could but was somewhat confused as to how he might do this. The offender claimed to be innocent of these charges and portrays himself as the innocent victim of his co-offender and of the Court. His self-perception is one of an honest individual, and as such, any involvement in these offences would be “out of character”. It is noted that in discussion, he had some difficulty accepting responsibility for offences relating to previous convictions. Although articulate and apparently high functioning in other areas, Mr Hajeid’s thinking may be somewhat muddled. For example, he had some difficulty with the notion that prior misdemeanours might not support his highly virtuous view of himself. It seems he is strongly motivated to preserve this image of himself” (page 3).

49 The applicant had been dealt with before the Children’s Court at Lidcombe in June 1997 and April 1999 for relatively minor offending which did not result in the imposition of custodial sentences. It is appropriate to disregard these matters in sentencing him for these serious criminal offences. For the reasons that we have canvassed in dealing with ground 2, we are not of the view that the applicant’s relative youth can allow of a significant moderation in the sentences to be imposed. These offences call for sentences that denounce criminal behaviour of this type and that serve to punish this applicant and to deter him and others from engaging in it.

50 In re-sentencing the applicant it is necessary to apply the provisions of

s 44 of the Crimes (Sentencing Procedure) Act 1999 as it stood prior to its amendment by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002. Accordingly, it is necessary to first set the term of the sentence and secondly to set a non-parole period for the sentence. The non-parole period must conform to the proportion specified in subsection (2) unless there are special circumstances for it being less. The Judge found special circumstances. The Crown on the hearing of the application did not submit, in the event of re-sentencing, that this Court would not give effect to that finding. The applicant’s youth and the fact that he has not previously been sentenced to a term of imprisonment are special circumstances for the purposes of

s 44(2).

51 In our view it is appropriate to distinguish between the s 61J(1) offences in which the applicant was an accessory from the offence committed on Ms B in which he was the principal. In senior counsel’s submission the s 61J(1) offence committed on Ms B was not of a serious character for such offences: the preceding assault was of a minor nature; there was no evidence that the applicant knew that Ms B had been sexually assaulted by any of his companions before he sexually assaulted her; he did not threaten her; the assault was one that involved oral intercourse only.

52 In R v O’Donnell (unreported) Court of Criminal Appeal, 1 July 1994, Hunt CJ at CL observed, “Fellatio in my opinion is normally less criminal than say anal or vaginal penetration”. Grove J (with whom Howie J agreed) discussed this observation in R v Andrews [2001] NSWCCA 428 at [6]:

“His Honour clearly did not intend that statement to reveal some matter of law, indeed in its terms was expressed only as an opinion and he did not suggest that it was axiomatic. With great respect to his Honour, in my view the penetration of a victim by a sexual organ derives its seriousness from a consideration of the particular circumstances of the case rather than from the nature of the sexual act itself. In this particular case, as I have observed, the act was intended manifestly to humiliate and dominate the victim. In those circumstances I would regard what was done as of a very high order of criminality.”

Those remarks are apt to the present case. This was a serious offence carried out to dominate and humiliate Ms B. The applicant was the principal and is deserving of severe punishment for it.

53 In structuring the sentences it is appropriate that the s 90A offence of detaining Ms A for advantage be served concurrently with the sentences for the sexual assaults committed against Ms A since the detention was bound up with these offences. The assault that preceded the sexual assaults was a most serious instance of common assault. The Judge imposed the maximum sentence for this offence. We consider that it was appropriate to do so. There should be a degree of accumulation between the sentence for the assault and the sexual assaults that followed. The sentences for the offences involving Ms B should be partly accumulated on the sentences for the offences involving Miss A. As between them these sentences for the offences involving Ms B should all be served concurrently. No non-parole period will be fixed for the sentences imposed on counts one, two, four and eleven having regard to the sentences that are to be imposed in relation to the remaining counts in the indictment.

54 The aggregate term of the sentences to be imposed is seventeen years’ imprisonment with an effective non-parole period of twelve years.

Orders

1. Grant leave to appeal.

2. Allow the appeal and quash the sentences imposed in the District Court. In lieu thereof the applicant is sentenced to the following terms of imprisonment:

Count one (detain for advantage – Ms A) a fixed term of imprisonment for five years to date from 20 December 2002. That sentence will expire on 19 December 2007.

Count four (assault – Ms A) a fixed term of imprisonment for two years to commence on 20 December 2001 and to expire on 19 December 2003.

In respect of counts five, six, seven, eight and nine (aggravated sexual intercourse without consent – Ms A) imprisonment for eleven years to commence on 20 December 2002. These sentences will expire on 19 December 2013. In respect of each of these sentences there will be a non-parole period of seven years. The non-parole period for these offences will expire on 19 December 2009.

Count two (detain for advantage – Ms B) fixed term of imprisonment for five years to date from 20 December 2005. This sentence will expire on 19 December 2010.

Count eleven (assault Ms B) fixed term of imprisonment for one year to date from 20 December 2005. That sentence will expire on 19 December 2006.

Count twelve (aggravated sexual assault – Ms B) imprisonment for thirteen years to date from 20 December 2005. That sentence will expire on 19 December 2018. Specify a non-parole period of eight years to date from 20 December 2005. The first date upon which the applicant will be eligible for consideration of release to parole is 19 December 2013.

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LAST UPDATED: 04/04/2008