Citation: Regina v MSK; Regina v MAK; Regina v MRK; Regina v MMK [2004] NSWSC 319
Court: Supreme Court of New South Wales, Common Law Division
Date: 22 April 2004 (Addendum: 29 April 2004)
Judge: Sully J
Background
Four offenders, referred to by initials throughout these proceedings, were convicted by juries of multiple serious sexual offences against two teenage girls, identified as LS and HG. Two of the offenders (MRK and MMK) were under 18 at the time of the offences; the other two (MSK and MAK) were adults and brothers of the younger pair. A fifth offender, RS, was tried jointly with MRK and MMK but died in tragic circumstances on 15 April 2004, shortly before the remarks on sentence were delivered.
The offences occurred in the early hours of Sunday 14 July 2002, after the two victims, then aged approximately 17 and 16, met three of the offenders near Town Hall Station in Sydney's city centre. Having missed their last train home, the girls agreed to accompany the group to the family home in Ashfield. The offences were committed there.
All suppression orders remained in place throughout. The Court noted that publishing the names of the adult offenders would effectively identify the younger ones, and accordingly directed that no names be published. Sentencing proceedings took place across four hearing days in February and March 2004.
Legal Issues
- The appropriate sentences for each of the four offenders convicted of multiple contraventions of s 61JA of the Crimes Act 1900 (NSW), which carries a maximum penalty of life imprisonment.
- The application of sentencing principles to offenders who were children at the time of offending, having regard to the Children (Criminal Proceedings) Act 1987 (NSW).
- Whether specific non-parole periods needed to be stipulated for certain sentence components following the initial remarks on sentence.
- The procedural management of the sentencing file relating to the deceased offender RS, including the sealing of material relating to his individual case.
Decision
Sully J delivered extensive remarks on sentence addressing the gravity of the offences and the individual circumstances of each offender. The charges under s 61JA of the Crimes Act (aggravated sexual assault in company) carry a maximum penalty of life imprisonment, reflecting the legislature's assessment of such offending as among the most serious in the criminal calendar.
The Court took into account the youth of MRK and MMK at the time of the offences, as required by the Children (Criminal Proceedings) Act 1987, and directed that their imprisonment be managed to limit contact with hardened adult criminals and to facilitate continued education, vocational training, and psychological treatment. The remarks for RS were separately engrossed, sealed, and placed on the court file pending any future necessity, given his death before sentence was formally concluded.
An addendum was delivered on 29 April 2004, under s 43 of the Crimes (Sentencing Procedure) Act 1999, to stipulate non-parole periods for specific sentence components that had not been expressed with sufficient particularity in the original remarks. The overall results of the sentences for each offender were not disturbed; only the technical expression of certain components was corrected.
Orders Made
MSK:
- Count 2: imprisonment for 12 years commencing 13 August 2009, with a non-parole period of 9 years expiring 12 August 2018.
MMK:
- Count 6: imprisonment for 12 years commencing 1 August 2006, with a non-parole period of 9 years expiring 31 July 2015.
- Count 7: imprisonment for 12 years commencing 1 August 2009, with a non-parole period of 6 years expiring 31 July 2015.
MAK:
- No amendment required to the sentences as originally expressed.
MRK:
- Counts 1, 2, 3 and 4: imprisonment for 8 years each, commencing 1 August 2002, with a non-parole period of 5 years expiring 31 July 2007.
RS:
- Material relating to RS was sealed in an envelope marked MFI 3 and retained on the court file. No access is to be granted without a prior order of a Judge of the Supreme Court or a higher court.
Key Takeaways
- Contraventions of s 61JA of the Crimes Act 1900 (aggravated sexual assault in company) carry a maximum penalty of life imprisonment, and the Supreme Court treated multiple counts of such offending as warranting substantial cumulative sentences.
- Where offenders were under 18 at the time of the offences, the Children (Criminal Proceedings) Act 1987 applied to the sentencing exercise, with the Court making specific directions for the management of those offenders' imprisonment.
- Under s 43 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court retains power to amend its orders after delivery to stipulate non-parole periods that were not sufficiently specified in the original remarks.
- Publication suppression orders extended beyond the named juvenile offenders to encompass their adult co-offenders and related parties, where publication of the adults' names would otherwise frustrate the protection afforded to the younger offenders.
- Where an offender dies after conviction but before formal sentencing is completed, the court may seal the relevant sentencing material on the file for future reference, rather than simply discharging it from the record.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), including s 294A
- Crimes Act 1900 (NSW), including ss 61JA and 86(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 43
- Children (Criminal Proceedings) Act 1987 (NSW)
Cases:
- Camilleri (unreported, NSWCCA, 8 February 1990)
- Twala (unreported, NSWCCA, 4 November 1994)
- Veen (No 2) (1988) 164 CLR 465
- Reg v WM [2004] NSWCCA 53
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Glasby (unreported, 11 June 1998)
- Baker (unreported, NSWCCA, 20 September 1995)
- Previtera (1997) 94 A Crim R 76
- Kable v Director of Public Prosecutions (NSW) [1996] 189 CLR 51