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11
Court of Criminal Appeal 16 September 2005

R v Bilal Skaf

[2005] NSWCCA 297

Sexual offencesAssault & violencePublic order & justice offences
CRIMINAL LAW DETENTION OF COMPLAINANTS FOR ADVANTAGE AGGRAVATED INDECENT ASSAULT IN COMPANY AGGRAVATED ACT OF INDECENCY IN COMPANY PARITY WHETHER SENTENCES MANIFESTLY EXCESSIVE.

Citation: R v Bilal Skaf [2005] NSWCCA 297
Court: New South Wales Court of Criminal Appeal
Date: 16 September 2005
Judges: Studdert J, Bell J, Latham J

Background

The applicant was convicted at two separate jury trials in the District Court in 2001 and 2002 of a series of serious sexual offences committed in August 2000. The offences included detention for advantage, aggravated sexual intercourse without consent committed in company (both as principal and as accessory), aggravated indecent assault in company, aggravated acts of indecency in company, assault, and perverting the course of justice. The offending involved the detention and sexual assault of multiple complainants.

Following the first trial, the applicant was convicted on all counts. At the second trial, the jury disagreed on one aggravated sexual intercourse count but returned guilty verdicts on all remaining charges. The applicant was sentenced by Finnane DCJ across two sentencing occasions in August and October 2002.

The sentences were subsequently adjusted in their commencement dates by the Court of Criminal Appeal after convictions on two unrelated counts were quashed in earlier proceedings. The adjusted sentences, which included aggregate terms extending to 2047 with an effective non-parole period reaching 2031, were the subject of this leave application.

  • Whether the offences of aggravated sexual intercourse without consent constituted the "worst class of case," warranting maximum or near-maximum sentences
  • Whether the sentencing judge made errors in findings of fact or in sentencing approach
  • Whether the sentences were manifestly excessive, either individually or in their overall cumulative effect
  • Whether parity concerns arose in the sentences imposed, particularly regarding the distinction between offences committed as principal and as accessory

Decision

The Court granted leave to appeal and found that the sentences imposed at first instance were manifestly excessive when viewed in their totality. While the offending was accepted as extremely serious, the Court identified errors in the sentencing approach, including in how individual sentences were structured and cascaded, which produced an aggregate outcome that could not be sustained.

The Court drew a distinction between the offences committed as principal in the first degree and those committed as accessory. For the accessorial counts of aggravated sexual intercourse without consent in company, the Court substituted sentences of fourteen years each. For the counts where the applicant was the principal offender, sentences of fifteen and sixteen years were imposed depending on the particular offence.

On the question of whether the offending represented the "worst class of case" (the threshold test for imposing the statutory maximum), the Court's restructured sentences indicate it did not treat every count as meeting that threshold, although it plainly regarded the overall conduct as grave. The Court also addressed parity considerations in calibrating the sentences across the two sets of offending.

The restructured sentences, taken together, produce an earliest eligible parole date of 11 February 2023, with the final sentence expiring on 11 February 2029.

Orders Made

  • Leave to appeal granted.
  • The appeal against sentences allowed; all sentences imposed in the District Court quashed.
  • New sentences imposed as follows:

Offences committed on 10 August 2000:
- Detention for advantage (counts 1 and 2): 7 years each, commencing 12 February 2001, expiring 11 February 2008
- Assault (counts 4, 11 and 13): 2 years each, commencing 12 February 2001, expiring 11 February 2003
- Accessorial offences of aggravated sexual intercourse without consent in company (counts 6, 7, 8, 9, 10 and 12): 14 years each from 12 February 2001, expiring 11 February 2015; non-parole period of 10 years 6 months expiring 11 August 2011
- Aggravated sexual intercourse without consent (counts 3 and 5, Ms A): 15 years each from 12 February 2002, expiring 11 February 2017; non-parole period of 11 years 3 months expiring 11 May 2013
- Aggravated sexual intercourse without consent in company (count 14, Ms B): 15 years from 12 February 2004, expiring 11 February 2019; non-parole period of 11 years 3 months expiring 11 May 2015

Offences committed on 30 August 2000:
- Detention for advantage (count 3): 7 years from 12 February 2009, expiring 11 February 2016
- Pervert the course of justice (counts 16 and 17): 3 years each from 12 February 2009, expiring 11 February 2012
- Aggravated indecent assault in company and aggravated act of indecency in company (counts 4 and 5): 2 years each from 12 February 2011, expiring 11 February 2013
- Aggravated sexual intercourse without consent (in company), digital penetration (count 6): 15 years from 12 February 2012, expiring 11 February 2027; non-parole period of 9 years expiring 11 February 2021
- Aggravated sexual intercourse without consent, penile penetration (count 10): 16 years from 12 February 2013, expiring 11 February 2029; non-parole period of 10 years expiring 11 February 2023
- First eligible parole date: 11 February 2023

Key Takeaways

  • The Court of Criminal Appeal confirmed that even in cases involving extremely serious and multiple sexual offences, an aggregate sentencing outcome must remain proportionate and not become manifestly excessive through the mechanical accumulation of heavy individual terms.
  • A meaningful distinction exists between sentences imposed for offences committed as principal in the first degree and those committed as accessory: the Court imposed materially lower terms (14 years) for accessorial counts compared to 15 to 16 years for principal offences.
  • The "worst class of case" threshold, which must be reached before a sentencing court can impose the statutory maximum, was not applied uniformly across all counts, reflecting the need for careful individual assessment of each offence.
  • Parity considerations are a legitimate and active part of the sentencing exercise when an offender is sentenced across multiple trials involving related offending, and the Court factored these into the restructured sentence regime.
  • Errors in the sentencing judge's approach to structuring cumulative sentences can themselves constitute a sufficient basis for appellate intervention, even where individual sentences are not necessarily unreasonable in isolation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61O, 90A, 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43

Cases:
- Di Simoni v The Queen (1981) 147 CLR 383
- Ibbs v The Queen (1987) 163 CLR 447
- Lowe v The Queen (1984) 154 CLR 606
- Pearce v The Queen (1994) 194 CLR 610
- R v AEM & Ors [2002] NSWCCA 58
- R v Bavadra (2000) 115 A Crim R 152
- R v Boatswain (unreported, NSWCCA, 15 December 1993)
- R v Chami [2005] NSWCCA 299
- R v Ginder (1987) 23 A Crim R 1
- R v Presta [2000] NSWCCA 40
- R v Roberts (unreported, NSWCCA, 8 August 1994)
- R v Skaf & Anor (2004) 60 NSWLR 86
- R v Thomson & Houlton [2000] NSWCCA 309
- R v Way (2004) 60 NSWLR 168
- R v Wheeler [2000] NSWCCA 34
- Ryan v The Queen (2001) 206 CLR 267
- Siganto v The Queen (1998) 194 CLR 656
- Veen v The Queen (No 2) (1987) 164 CLR 465