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Court of Criminal Appeal 16 September 2005

Mohammed Skaf v R

[2005] NSWCCA 298

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

Citation: Mohammed Skaf v R [2005] NSWCCA 298
Court: New South Wales Court of Criminal Appeal
Date: 16 September 2005
Judges: Studdert J, Bell J, Latham J

Background

The applicant had been convicted in the District Court on two counts of detaining a person for advantage and two counts of aggravated sexual intercourse without consent in company. The offences occurred on 30 August 2000, when the victim was lured from a suburban train, taken to a carpark toilet block, detained, and subjected to serious sexual assaults. She was subsequently transported to further locations where additional offences were committed by others.

The applicant had originally been sentenced alongside related offences from a separate trial. When the Court of Criminal Appeal later quashed that separate conviction and sentence, it undertook a re-sentencing exercise under s 59 of the Crimes (Sentencing Procedure) Act to adjust the remaining sentences. That re-sentencing exercise contained clerical and substantive errors, including incorrect commencement and expiry dates for two of the four counts.

The applicant then sought leave to appeal against the sentences as varied, arguing errors in the sentencing judge's original findings and approach, and that the sentences were manifestly excessive.

  • Whether the sentencing judge made errors in findings of fact or in the overall approach to sentencing.
  • Whether the sentences imposed were manifestly excessive having regard to the nature and circumstances of the offences.
  • Whether errors arose in the earlier re-sentencing exercise conducted by the Court of Criminal Appeal under s 59, and how those errors should be corrected.
  • How the totality principle should apply across the four sentences.
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act to justify a longer parole period relative to the non-parole period.

Decision

The Court granted leave to appeal and allowed the appeal, but only in respect of the sentences for counts 14 and 15 (the second detention offence and the second aggravated sexual intercourse offence). The sentences for counts 1 and 2 were confirmed.

The Court identified acknowledged errors in the re-sentencing exercise from the earlier proceedings: the commencement dates for counts 14 and 15 had been stated incorrectly. The sentencing judge had originally structured the sentences so that the later pair of offences commenced eight years after the earlier pair, and that gap should have been preserved when the sentences were adjusted. The re-sentencing had failed to do so, and the Crown accepted this.

On the question of manifest excess, the Court found that the head sentence of fifteen years for the count 15 offence (the second aggravated sexual assault) was appropriate. However, applying the totality principle, the Court adjusted the commencement date for that sentence so that it would expire two years after the head sentence for count 2. The Court confirmed that the overall non-parole period of eleven years, already in place from the count 2 sentence, should not be disturbed.

The Court found special circumstances existed for the purposes of s 44, citing the applicant's age, the fact this was his first period in custody, the length of the sentence, and the interests of rehabilitation. No separate non-parole period was set for count 14, which was to be served concurrently with count 15. The overall effect of the restructured sentences was an aggregate imprisonment term of nineteen years with a non-parole period of eleven years.

Orders Made

  • Leave to appeal against the sentences imposed was granted, and the appeal was allowed.
  • Sentences imposed in respect of counts 1 and 2 were confirmed.
  • Sentence for count 14 was quashed and replaced with five years imprisonment commencing 1 January 2005 and expiring 31 December 2009.
  • Sentence for count 15 was quashed and replaced with fifteen years imprisonment commencing 1 January 2005 and expiring 31 December 2019, with a non-parole period commencing 1 January 2005 and expiring 2 January 2012.
  • The first date upon which the applicant is eligible for release on parole is 2 January 2012.

Key Takeaways

  • When the Court of Criminal Appeal re-sentences under s 59 of the Crimes (Sentencing Procedure) Act following the quashing of one sentence in a set of related sentences, it must preserve the structural relationships between remaining sentences as originally intended by the sentencing judge, including commencement date gaps between tranches of offences.
  • The totality principle operates to ensure that a series of sentences, taken together, reflects the overall criminality involved without producing a result that is disproportionate; the Court applied this by calibrating the expiry date of the count 15 sentence against the head sentence for count 2.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act were established by a combination of the applicant's youth, his first period in custody, the length of the sentence, and rehabilitation considerations, justifying a non-parole period that was a higher proportion of the head sentence than the statutory default.
  • Errors in a re-sentencing exercise, including incorrect commencement and expiry dates, can ground a further appeal even where the substantive head sentences are not themselves manifestly excessive.
  • In dismissing the manifest excess ground in respect of the primary sentences, the Court confirmed that a seventeen-year head sentence for aggravated sexual intercourse without consent in company, in circumstances involving detention and multiple offenders, was within the appropriate range.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act, s 6
- Crimes Act 1900 (NSW), ss 61J, 90A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44, 59

Cases:
- Ibbs v The Queen (1987) 163 CLR 447
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v Bailey (1998) 35 A Crim R 458
- R v Jones (1993) 70 A Crim R 449
- R v AEM & Ors [2002] NSWCCA 58
- R v B. Skaf & M. Skaf (2004) 60 NSWLR 86
- R v Smith (1987) 44 SASR 857
- Ryan v The Queen (2001) 206 CLR 267
- Veen v The Queen (No. 2) (1987-1988) 164 CLR 465