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Court of Criminal Appeal 8 February 2008

GHANEM v REGINA

[2008] NSWCCA 4

Sexual offencesAssault & violencePublic order & justice offences
CRIMINAL LAW DETENTION OF COMPLAINANTS FOR ADVANTAGE ASSAULT PARITY PRINCIPLE PRINCIPLE OF TOTALITY FOR OFFENCES YOUTH

Citation: Ghanem v Regina [2008] NSWCCA 4
Court: NSW Court of Criminal Appeal
Date: 8 February 2008
Judge(s): McClellan CJ at CL; Hall J; Price J

Background

The applicant was convicted following two separate District Court trials of serious offences arising from events on the night of 10 August 2000 at Northcote Park, Greenacre. Two female complainants, aged 17 and 18 and in their final year of high school, were lured from a shopping centre in Chatswood by a group of young men, transported to an isolated park, and subjected to serious sexual assaults. The offences included unlawfully detaining both complainants for advantage, assault, and multiple counts of aggravated sexual intercourse without consent committed in company.

At first instance, the sentencing judge (Finnane DCJ) imposed an overall aggregate sentence of 40 years' imprisonment with a non-parole period of 26 years, covering offences against both complainants and a further set of offences from a second incident in Bankstown. The applicant sought leave to appeal against those sentences.

By the time the appeal was heard, a significant change had occurred in the factual foundation for sentencing. Following a retrial ordered by the Court of Criminal Appeal in 2004, the applicant was acquitted of the Bankstown charges. The Crown accepted that re-sentencing was therefore necessary, at minimum to remove those charges from the aggregate. The central remaining question was whether any further reduction was warranted, including by reference to sentences imposed on a co-offender.

  • Whether the acquittal on the Bankstown charges required re-sentencing, thereby altering the factual foundation for the original aggregate sentence
  • Whether the sentencing judge erred in findings or approach in respect of the Greenacre offences
  • Whether the parity principle required the applicant's sentence to be brought into alignment with the sentence imposed on co-offender Belal Hajeid
  • Whether the principle of totality was correctly applied, given the effective accumulation of non-parole periods across the two sets of Greenacre offences
  • Whether the original sentences were manifestly excessive, including any consideration of the applicant's youth

Decision

The Court unanimously granted leave to appeal and allowed the appeal. The acquittal on the Bankstown charges was the primary trigger for re-sentencing, a position the Crown accepted. However, the Crown also conceded Grounds 2, 3 and 5 of the application in light of the earlier decision in Regina v Hajeid [2005] NSWCCA 262, acknowledging that errors of approach affected the Greenacre sentences as well.

The Crown's concession that the applicant's case was, for practical sentencing purposes, indistinguishable from that of co-offender Hajeid was central to the Court's approach. Hajeid had received a head sentence of 17 years with a non-parole period of 12 years. The applicant's counsel put the same benchmark as the appropriate outcome, while also arguing for a lesser result; however, the Court ultimately settled on parity with Hajeid as the appropriate measure.

Hall J, with whom McClellan CJ at CL and Price J agreed, found that the original sentencing structure had impermissibly rendered the effective non-parole periods cumulative by delaying the commencement of the sentences for offences against Ms B until after expiry of the non-parole period for the Ms A offences. The restructured sentences introduced genuine partial accumulation while producing an aggregate of 17 years' imprisonment with an effective non-parole period of 12 years. The Court confirmed that the factual findings about the gravity and organised nature of the criminality remained unchallenged and fully supported the characterisation of the offending as serious.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; all sentences imposed in the District Court quashed.
  • The applicant was re-sentenced as follows:
  • Count 1 (detain Ms A for advantage, s.90A Crimes Act): fixed term of 5 years from 17 November 2002, expiring 16 November 2007.
  • Count 4 (assault Ms A, s.61 Crimes Act): fixed term of 2 years from 17 November 2001, expiring 16 November 2003.
  • Counts 5, 6, 7, 8 and 9 (aggravated sexual intercourse without consent, Ms A, s.61J(1) Crimes Act): 11 years from 17 November 2002, expiring 16 November 2013, with a non-parole period of 7 years expiring 16 November 2009.
  • Count 2 (detain Ms B for advantage, s.90A Crimes Act): fixed term of 5 years from 17 November 2005, expiring 16 November 2010.
  • Count 11 (assault Ms B, s.61 Crimes Act): fixed term of 1 year from 17 November 2005, expiring 16 November 2006.
  • Count 12 (aggravated sexual intercourse without consent, Ms B, s.61J(1) Crimes Act): 13 years from 17 November 2005, expiring 16 November 2018, with a non-parole period of 8 years; first eligible for parole consideration on 16 November 2013.

Key Takeaways

  • An acquittal on retrial can materially alter the factual foundation for an aggregate sentence, requiring the appellate court to re-sentence the offender afresh rather than simply adjusting individual components.
  • The parity principle operates to bring co-offenders' sentences into alignment where their cases are, for practical sentencing purposes, indistinguishable. Here, the Crown's own concession that the applicant's case was indistinguishable from Hajeid's drove the outcome.
  • Where a sentencing structure effectively renders non-parole periods cumulative by sequencing the commencement of later sentences to follow the expiry of earlier non-parole periods, the Court of Criminal Appeal may restructure the sentences to give genuine effect to the principle of partial accumulation.
  • The overall aggregate of 17 years with a 12-year effective non-parole period was treated as appropriate for very serious organised group sexual offending of this character, notwithstanding findings of high criminality and organised criminal conduct that remained unchallenged on appeal.
  • Unchallenged factual findings at the sentencing stage about the gravity of the offending do not prevent an appellate court from intervening where legal errors in the sentencing approach are established or conceded.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss.61, 61J(1), 90A
- Crimes (Serious Sex Offenders) Act 2006 (NSW)
- Criminal Law Consolidation Act 1935 (SA)

Cases:
- R v Ghanem & Ors [2004] NSWCCA 36
- R v Hajeid [2005] NSWCCA 262
- R v Skaf & Ors [2004] NSWCCA 74
- R v Skaf & Ors [2004] NSWCCA 36
- R v Simpson [2001] NSWCCA 534
- Hoare v The Queen (1989) 167 CLR 348
- Power v The Queen (1974) 131 CLR 362
- Radenkovic v The Queen (1990) 170 CLR 623
- Veen v The Queen (No 2) (1987) 164 CLR 465