Citation: Regina v MAK; Regina v MSK; Regina v MMK [2005] NSWCCA 369
Court: NSW Court of Criminal Appeal
Date: 4 November 2005
Judges: McClellan CJ at CL, Grove J, Hall J
Background
Three men (referred to as MAK, MSK, and MMK) were convicted of offences arising from the same series of events in July 2002. Two teenage complainants, aged seventeen and sixteen, were subjected to multiple sexual assaults committed in company and involving threats of violence and deprivation of liberty. Each offender was convicted on nine counts of aggravated sexual assault in company under s 61JA of the Crimes Act 1900, which carries a maximum penalty of life imprisonment.
Sentencing was conducted by Sully J in the Supreme Court. The effective custodial terms imposed were substantial: twenty-two years for MSK (with a non-parole period of sixteen years and six months), sixteen years for MAK (non-parole period of twelve years), and twenty-two years for MMK (non-parole period of thirteen years). MMK was a juvenile at the time of the offences and was ordered to serve the sentence in a juvenile detention centre until age twenty-one.
All three sought leave to appeal against the severity of their sentences. Their earlier conviction appeals had already been dismissed by the Court of Criminal Appeal.
Legal Issues
- Whether new psychological or psychiatric evidence introduced on behalf of MSK disclosed a mitigating mental condition that warranted a reduction in sentence
- Whether the extent of cumulation in MSK's sentence was excessive or involved error
- Whether the structure of MAK's sentence created an incongruity, specifically that fixed terms for some counts exceeded the non-parole period for the count he personally committed
- Whether the sentencing judge erred in characterising the offences as falling within the "worst category"
- Whether the sentencing judge erred by treating the offences as involving a "breach of trust" under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999
- Whether MMK's sentence was disproportionate compared with MSK's, given the parity principle, and whether his youth warranted a lesser sentence
Decision
The Court received the new evidence tendered on MSK's behalf regarding his mental condition but rejected the submission that it mitigated his sentence to a degree warranting intervention. No error was established in the extent of cumulation applied to MSK's counts.
On MAK's appeal, the Court found that the apparent structural incongruity in his sentences, where fixed terms on some counts were longer than the non-parole period on the count he personally committed, did not reveal any implied error in the overall sentence imposed. Leave to appeal was refused for MAK at his own counsel's request, so that the sentences would not be foreclosed from future examination in the context of unrelated matters for which he was yet to be sentenced.
The sentencing judge's characterisation of the offences as being in the "worst category" was upheld, but the Court clarified that such a characterisation must be assessed against the available maximum of life imprisonment, not against a lower benchmark. One ground did succeed: the sentencing judge had erred in treating the offences as involving a breach of trust under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999. However, the Court declined to intervene on that basis alone because the sentences overall remained within the sound range of sentencing discretion.
Regarding MMK, the Court acknowledged that his head sentences were identical to MSK's but that his non-parole period was markedly lower, reflecting his youth. The Court found this distinction was appropriate and that lesser sentences were not warranted. The Court reiterated the established principle that it can only substitute a sentence if it forms the positive opinion that some other sentence was warranted in law: R v Simpson (2001) 53 NSWLR 704. That precondition was not satisfied for any appellant.
Orders Made
- MAK: Leave to appeal refused
- MSK: Leave to appeal granted; appeal dismissed
- MMK: Leave to appeal granted; appeal dismissed
Key Takeaways
- A sentencing court's finding that sexual assault offences fall within the "worst category" must be assessed against the full available maximum, which in this context was life imprisonment under s 61JA of the Crimes Act 1900.
- Where a sentencing judge incorrectly applies an aggravating factor under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999, the Court of Criminal Appeal will not necessarily intervene if the overall sentence remains within the appropriate range of discretion.
- The Court of Criminal Appeal confirmed that new mitigating evidence can be received on appeal but does not automatically produce a sentence reduction; the court must be positively satisfied that a different sentence was warranted in law before substituting its own.
- A juvenile offender's youth is a proper basis for setting a markedly shorter non-parole period than that applied to adult co-offenders, even where head sentences are identical, and this does not breach the parity principle.
- Cultural background or "cultural conditioning" cannot justify or mitigate conduct constituting sexual assault; the Court emphasised that every person has a fundamental right to be free from assault regardless of an offender's cultural origin.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61JA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A, s 21A(2)(k)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), s 249A
- Children (Criminal Proceedings) Act 1987 (NSW)
Cases:
- R v Simpson (2001) 53 NSWLR 704
- Baumer v The Queen (1988) 166 CLR 51
- Ibbs v The Queen (1987) 163 CLR 447
- Pearce v The Queen (1998) 194 CLR 610
- The Queen v Olbrich (1999) 199 CLR 270
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Hammoud (2000) 118 A Crim R 66
- R v Wickham [2004] NSWCCA 193
- R v Gordon (1994) 71 A Crim R 459
- R v Twala (NSWCCA, unreported, 4 November 1994)
- R v Donovan [1934] 2 KB 498
- Walden v Hensler (1987) 61 ALJR 646