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Court of Criminal Appeal 21 June 2024

Al Dhaifa v R

[2024] NSWCCA 108

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE APPLICATION FOR LEAVE TO APPEAL

Citation: Al Dhaifa v R [2024] NSWCCA 108
Court: Court of Criminal Appeal
Date: 21 June 2024
Judge(s): Garling J (leading judgment), McNaughton J, Weinstein J

Background

The applicant (given the pseudonym Mohamed Al Dhaifa to protect his victims' identities) was sentenced in the District Court in October 2020 to an aggregate term of 25 years' imprisonment with a non-parole period of 18 years. The sentence arose from 18 sexual offences committed against five children over a period spanning approximately 24 years, from 1995 to 2019. Four of the victims were nephews or nephews by marriage; the fifth was the applicant's own son.

The offences ranged from aggravated indecent assault to aggravated sexual assault under various provisions of the Crimes Act 1900, and the applicant received a 25 per cent discount on each indicative sentence for early guilty pleas. He had been in custody since his arrest in September 2019.

In December 2023, more than three years after sentencing, the applicant sought leave to file a notice of appeal out of time. He relied on 15 grounds of appeal, each directed at how the sentencing judge had applied the statutory aggravating factor in section 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999, which relates to the vulnerability of victims.

The appeal raised the following key questions:

  • Whether the sentencing judge erred by finding aggravation under section 21A(2)(l) by reason of the victims' ages, in circumstances where the age of the victim was already an element of the charged offence (potentially constituting impermissible double counting)
  • Whether, for certain counts, the sentencing judge failed to properly consider whether the victims were "very young" as a distinct sentencing consideration
  • Whether the sentencing judge erred by finding aggravation on the basis that the applicant lived with, or was a family member of, certain victims, when that relationship was also an element of the aggravated charge
  • Whether the sentencing judge failed to give adequate reasons for finding aggravation under section 21A(2)(l)
  • Whether the aggregate sentence of 25 years with an 18-year non-parole period was manifestly excessive

Decision

The Court granted leave to appeal but dismissed the appeal in its entirety. Garling J delivered the leading judgment, with McNaughton J and Weinstein J agreeing.

On the grounds concerning victim age and family relationship as aggravating factors, the Court examined whether the sentencing judge had impermissibly "double counted" a matter already embedded in the statutory elements of the offences charged. Section 21A(2)(l) permits a court to treat the vulnerability of a victim as an aggravating factor, but where vulnerability is already captured by the definition of the offence itself, a sentencing court must take care not to punish the offender twice for the same feature. The Court found that, read in context, the sentencing judge's approach did not give rise to an error of the kind alleged across the various counts.

On the failure-to-give-reasons grounds, the Court acknowledged the obligation on sentencing courts to explain their reasoning when finding statutory aggravation, but concluded that no error vitiating the sentences was established across the grounds pressed.

On manifest excess, the Court considered the overall picture: five victims, 24 years of offending, 10 counts of aggravated sexual assault carrying a maximum of 20 years each, deliberate exploitation of the victims for the applicant's own sexual gratification, findings of physical discomfort caused to victims, an absence of genuine remorse, and no meaningful prediction of rehabilitation. The Court held that the aggregate sentence could not be regarded as excessive in any way, and that the degree of concurrence built into the aggregate figure, relative to the individual indicative sentences, further supported that conclusion.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under section 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must be careful not to treat as an aggravating factor a feature (such as a victim's age or a family relationship) that is already an element of the offence charged, as doing so risks impermissible double counting.
  • No error was established in the sentencing judge's application of section 21A(2)(l) across the 15 grounds pressed, despite the applicant's argument that victim age and family relationship had been counted twice in several counts.
  • Sentencing courts bear an obligation to give reasons for findings of statutory aggravation, though the Court of Criminal Appeal found that obligation was not breached in a manner that vitiated the sentences here.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal emphasised that an aggregate sentence of 25 years must be assessed against the totality of the offending, including the number of victims, the duration of the conduct, and the seriousness of each individual offence.
  • A finding of no genuine remorse, combined with no meaningful prospect of rehabilitation, reinforced the sentencing court's emphasis on general deterrence, specific deterrence, and denunciation as the dominant sentencing considerations.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including ss 61J(1), 61KD(1)(a), 61M(1), 61M(2), 61O(1), 61P
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(l)

Cases
- Attorney-General for NSW v DSF Constructions Pty Ltd [2019] NSWCCA 33
- Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Magoo v R [2020] NSWCCA 25
- MRW v R [2011] NSWCCA 260
- Mulato v R [2006] NSWCCA 282
- PC v R [2022] NSWCCA 107; (2022) 108 NSWLR 181
- Shannon v R [2006] NSWCCA 39