Regina v MS [2005] NSWCCA 322

New South Wales Court of Criminal Appeal

CITATION: Regina v MS [2005] NSWCCA 322

HEARING DATE(S): 25 July 2005

JUDGMENT DATE: 16 September 2005

JUDGMENT OF: Studdert J; Bell J; Latham J

DECISION: Leave to appeal is granted: Appeal Dismissed

CATCHWORDS: Aggravated sexual assault - detention of complainant - offences committed in company when a juvenile - parity.

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

H [2005] NSWCCA 282, par 12 R v Andrews [2001] NSWCCA 428 Ibbs v the Queen (1987) 163 CLR 447 CASES CITED: Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSW CCA 518 R v Barton (2001) NSW CCA 63 Attorney General's application under s 37 R v AEM & Ors [2002] NSWCCA 58

Regina PARTIES: MS

FILE NUMBER(S): CCA 2003/3064

R. Cogswell SC/D. Arnott (Crown) COUNSEL: D. Dalton (Applicant)

S. Kavanagh (Crown) SOLICITORS: David H. Cohen & Co. (Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/1054

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

IN THE COURT OF CRIMINAL APPEAL 2003/3064

STUDDERT J BELL J LATHAM J

Friday 16 September 2005 REGINA V MS Judgment 1 THE COURT: The applicant, MS, seeks leave to appeal against the severity of sentences imposed by his Honour, Judge Finnane QC (the Judge) on 6 September 2002. The applicant pleaded guilty to one count of aggravated sexual assault and one count of detain for advantage. Both offences were committed on 30 August 2000 against one complainant, Ms C. 2 The sentence imposed for the aggravated sexual assault count was one of imprisonment for eleven years and three months with a non parole period of six years and six months. The sentence imposed for the count of detain for advantage was imprisonment for a fixed term of three years and nine months. Both sentences commenced on 15 December 2000, allowing for the applicant's release to parole on 14 June 2007. 3 The facts upon which the Judge sentenced the applicant detailed the activities of a group of young men, including the applicant, and his brother, MoS, from a point in time when they encountered Ms C on a train on 30 August 2000 until she left their company and was taken by a co-offender, H, and others in a black car to another location where she was subjected to further sexual assaults and then in a red car to yet another site where the sexual assaults continued. It is not necessary to repeat all the facts as set out by the Judge in his remarks on sentence. Briefly, the complainant was approached by the group of young men, including the applicant, his brother, and the co-offender Mohammed Skaf, whilst travelling on a train from Belmore to Lidcombe. The complainant agreed to travel further to Bankstown, following an invitation to her to join the men for a smoke of marijuana . They all alighted from the train at Bankstown and proceeded to the Marion Street carpark. Mohammed Skaf had earlier taken the complaint's mobile phone and lured her into one of the toilets in the toilet block of the park, where she was detained. The complainant was told by Mohammed Skaf that she would not receive her phone until she engaged in sexual intercourse with him. The complainant refused and attempted to leave. However she was prevented from so doing and shortly thereafter Mohammed Skaf pushed the complainant up against the tiled wall of the toilet block, pulled down her skirt and underwear and engaged in penile vaginal intercourse with her. He then left the toilet block, whereupon the applicant came in. At this point, the complainant was trying to leave the toilet block. The applicant said "Don't you fucking say anything". He then pulled down her skirt with one hand and attempted to pull her top up. He then pulled her skirt and underwear completely off and told her to step out of them. He turned her around to face the wall and removed her top. He then grabbed at her breasts and tried to insert his fingers in her vagina. He then put a condom on, masturbated himself to a full erection and then forced his penis into her vagina. Following ejaculation, he withdrew his penis, pulled off the condom, threw it on the floor and said "fuck that was good". He then left the toilet block and further sexual assaults followed upon the complainant by others. Throughout this ordeal, the complainant was prevented from leaving the toilet block by various offenders who remained "on guard" outside. 4 The act of penile vaginal intercourse detailed above was the basis of the charge under s 61J of the Crimes Act 1900, to which a maximum penalty of twenty years imprisonment applied. The complainant's detention for advantage within the toilet block was the basis of the charge under s 90A of the Crimes Act 1900 for which the maximum penalty was one of imprisonment for twenty years or if the victim was released with no substantial injury, fourteen years' imprisonment. Whilst the Judge did not refer in terms to the maximum penalty applicable to the charge under s 90A, it is accepted that his Honour dealt with the matter on the basis that the lesser maximum penalty applied. 5 The applicant's sole ground of appeal was that the sentence imposed was, in all the circumstances, manifestly excessive. However, three features of the sentencing exercise were isolated by the applicant as demonstrative of the general ground. Those three features were as follows: i) That his Honour's overall starting point was excessive in that a starting point was adopted by reference to co- offenders, who had committed offences not only against the complainant, Ms C, but also against other complainants on other occasions.