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Court of Criminal Appeal 16 September 2005

Regina v Belal Hajeid

[2005] NSWCCA 262

Sexual offencesAssault & violencePublic order & justice offences
CRIMINAL LAW DETENTION OF COMPLAINANTS FOR ADVANTAGE ASSAULT YOUTH WHETHER SENTENCES MANIFESTLY EXCESSIVE.

Citation: Regina v Belal Hajeid [2005] NSWCCA 262
Court: NSW Court of Criminal Appeal
Date: 16 September 2005
Judge(s): Studdert J, Bell J, Latham J

Background

The applicant was convicted of ten offences arising from events on the night of 10 August 2000, when he and a group of other men lured two women from a shopping centre to an isolated park in Greenacre. The offences included detaining the complainants for advantage, common assault, and multiple counts of aggravated sexual intercourse without consent in company, under the Crimes Act 1900.

The applicant was aged 18 years and nine months at the time of the offences. He stood trial alongside co-offenders, including Bilal Skaf. In June 2002, the District Court (Finnane DCJ) sentenced him to an aggregate of 23 years' imprisonment with an effective non-parole period of 15 years.

The applicant sought leave to appeal, arguing that the sentencing judge made errors in his findings and approach, and that the sentences were manifestly excessive given the applicant's youth at the time of the offending.

  • Whether the sentencing judge made errors in his factual findings or in his overall sentencing approach
  • Whether insufficient weight was given to the applicant's youth as a mitigating factor
  • Whether the aggregate sentences of 23 years with a 15-year non-parole period were manifestly excessive
  • How sentences for accessorial offences (aiding and abetting) should be calibrated against the sentence for the principal offence (aggravated sexual assault on Ms B), of which the applicant was the principal offender in the first degree

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, quashing the sentences imposed by the District Court. The Court found that the original sentences were manifestly excessive, particularly having regard to the applicant's age at the time of the offences.

The Court accepted that the offending was extremely serious. The assault on Ms A was described as a most serious instance of common assault, warranting the maximum two-year sentence for that offence. The sexual offences against both complainants were grave, and the Court considered that some degree of accumulation between the groups of offences was appropriate to reflect the distinct harm caused to each complainant.

In resentencing, the Court reduced the aggregate term to 17 years' imprisonment with an effective non-parole period of 12 years. No separate non-parole periods were fixed for the detention and assault counts, given the structure of the remaining sentences. The sentences for offences relating to Ms B were ordered to run concurrently with each other but were partly accumulated on the sentences for offences involving Ms A.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; all District Court sentences quashed
  • Count 1 (detain for advantage, Ms A): fixed term of 5 years from 20 December 2002, expiring 19 December 2007
  • Count 4 (assault, Ms A): fixed term of 2 years from 20 December 2001, expiring 19 December 2003
  • Counts 5, 6, 7, 8 and 9 (aggravated sexual intercourse without consent, Ms A): 11 years from 20 December 2002, expiring 19 December 2013; non-parole period of 7 years expiring 19 December 2009
  • Count 2 (detain for advantage, Ms B): fixed term of 5 years from 20 December 2005, expiring 19 December 2010
  • Count 11 (assault, Ms B): fixed term of 1 year from 20 December 2005, expiring 19 December 2006
  • Count 12 (aggravated sexual assault, Ms B): 13 years from 20 December 2005, expiring 19 December 2018; non-parole period of 8 years from 20 December 2005, with first eligibility for parole on 19 December 2013
  • No non-parole periods fixed for the detention and assault counts (counts 1, 2, 4 and 11)

Key Takeaways

  • The Court of Criminal Appeal confirmed that youth at the time of offending is a significant mitigating factor in sentencing, capable of producing a material reduction in an otherwise appropriate sentence even for very serious violent and sexual offences.
  • A distinction exists between accessorial liability (aiding and abetting) and being the principal offender in the first degree; that distinction is relevant to the relative weight of individual counts in an aggregate sentence, though both may warrant substantial terms for serious offences.
  • Where an offender commits serious offences against two separate complainants on the same occasion, partial accumulation of sentences is an available and appropriate tool to reflect the discrete harm caused to each victim without producing a crushing aggregate.
  • The maximum penalty for common assault under the Crimes Act 1900 (2 years) was applied to the assault count, reflecting the Court's view that the particular circumstances warranted the statutory maximum for that offence.
  • In dismissing the original sentence structure as manifestly excessive, the Court reduced the aggregate from 23 years (non-parole 15 years) to 17 years (non-parole 12 years), illustrating the practical significance of appellate review of sentencing totality in multi-count indictments.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 61J(1), 90A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)

Cases
- GAS v R (2004) 217 CLR 198
- Markarian v R [2005] HCA 25; 79 ALJR 1048
- Mill v R (1988) 166 CLR 59
- R v AEM Snr; KEM; MM [2002] NSWCCA 58
- R v AN [2005] NSWCCA 239
- R v Andrews [2001] NSWCCA 428
- R v Bavadra (2000) 115 A Crim R 152
- R v Blake [2003] NSWCCA 113
- R v Bugmy (1990) 169 CLR 525
- R v O'Donnell (unreported, Court of Criminal Appeal, 1 July 1994)
- R v Pham and Ly (1991) 55 A Crim R 128
- R v Way (2004) 60 NSWLR 168