By Candace Sutton
SMH
August 18 2002
* Australia's Finest, Margaret Cunneen,what this "Aussie Sheila" put up with,whilst prosecuting the Skaf Muslim Gang Rapists would have tested the best of Australia's Aussie Blokes ,this Lady, is without doubt one of Australia's Finest and should be named as an Australian National Treasure.
We will never know the exact numbers of "Aussie Pigs and Sluts" Gang Raped by "Pious Muslim Rape Gang's" Labor VOTE People,in NSW, conservatively put by NSW Police in excess of 100 in 1999/2000, Australian Wive's,Mothers and their daughters owe this woman and Judge Michael Finnane a debt of gratitude for ignoring the then state Labor Government's ideology of "Multiculturalism and all Cultures are equal" Policy and prosecuting the accused Muslim Gang Rapist's under NSW Judeo / Christian AUSTRALIAN Law .
She has prosecuted some of the nation's worst paedophiles, nailed a hit man, brought to justice sex abusing priests and looked after the cases of dozens of rape victims.
She is motherly to the victims as she prepares for a trial, but when it comes to hammering home her case, Crown Prosecutor Margaret Cunneen can be as hard as nails.
And while her prosecution work is by its nature very personal, Ms Cunneen had never heard anything quite like the sort of abuse being hurled about in the courtroom as she cross-examined one of the perpetrators in the recent landmark rape case.
It is not every day that a rapist's relative in open court will call a barrister, who is herself a mother of three, a "slut".
But there it was, the woman in the veil - under Islam, meant to symbolise honour, respect and dignity - yelling out advice in Arabic to her son as he answered Ms Cunneen's questions in the witness box: "Sharmoota, give it to the sharmoota."
It's not exactly water off a duck's back for Ms Cunneen, who returns home from days in court to her three young sons who are around the same age as the boys who fell victim to convicted pedophile Robert "Dolly" Dunn.
It was Ms Cunneen who, during her prosecution of the schoolteacher, successfully argued that the shocking video of Dunn's sexual exploits with young males be shown to the jury.
It was a move which drew criticism from some of her peers, disdainful of what they call "kiddie sex cases", but which helped secure the conviction of Dunn, who was jailed in December 2001 for 30 years.
For what some might see as grisly or even depressing work, Ms Cunneen seems to have a vocation.
After the 55-year benchmark sentence by Judge Michael Finnane last week, Ms Cunneen remarked that "these are difficult cases to prosecute and require a lot of energy to convey the evidence to the jury.
"This is the perfect case to see how well the systems of government, right from the time police began interviewing the girls, are co-ordinated."
When approached for comment about the case, Ms Cunneen declined.
But it is clear that the choice of Ms Cunneen for the job of prosecuting the four gang rape trials, which began in November last year and ended last week, was a good one.
Arguably, Ms Cunneen's successful prosecution of "X" has changed the face of sex crimes trials in Australia forever.
Reporters who have covered the trial - and colleagues who have followed her 25-year career - say her grit and resilience, as well as her empathy with the victims, ensured its success.
And Ms Cunneen's career seems to have prepared her perfectly for the task.
When she left school in 1976, MsCunneen could not afford to study full-time and worked as a law clerk in the NSW Attorney-General's office to put herself through the University of Technology.
After graduating, before she did her Masters part-time at Sydney University, she worked for the Public Service Board as a prosecutor, often on cases in which Department of Community Services employees had abused children.
She joined the office of the Director of Public Prosecutions at the age of 27 as the solicitor in charge of the Child Sexual Assault Unit and earned a reputation as a prosecutor with a certain drive to assist victims of sexual violence, "to give them a voice", a colleague of Ms Cunneen's said.
"She is very good at explaining the dynamics of the situation of a victim to juries," the colleague said.
"She gets very close to the victims and understands them very well. Some of them stay in touch for years afterwards."
Twelve years ago, Ms Cunneen was appointed as a Crown Prosecutor and the cases thrown her way by the DPP, Nicholas Cowdery, QC, and his predecessor Reg Blanch, have a theme.
Somewhere in there, Ms Cunneen had three sons, now aged between 10 and 14 years.
A woman judicial officer, who has known Ms Cunneen since they were teenage girls, says she feels strongly the importance of changing the landscape in rape cases "from where it was 20 years ago when girls were 'asking for it' and were questioned about their sex lives and the clothes they wore 'to the rape'."
A stylish woman with a ready laugh and a gregarious nature, Ms Cunneen drinks beer and takes it by the schooner, but usually is seen rushing home from Sydney's Downing Centre to see her boys.
In a mostly man's world, where some barristers consider prosecuting as being on the wrong side of the bar table, Ms Cunneen has one of the most offensive case loads of any legal mind in the country.
She has prosecuted pedophiles Phillip Bell and Colin Fisk, the St Gerard Majella priests who preyed on their novices, three young Muslim men who raped a woman during a home invasion, the Campsie serial rapist Quoc Vinh "Vincent"
To and cross-examined Samantha Knight's murderer, Michael Guider, when he was on trial for having photographs of underage girls.
Ms Cunneen is said to live and breathe her cases, but possesses enormous energy and has a black belt in tae kwon do.
Theoretically, she could pole axe with one kick anyone who called her a "sharmoota".
Last week, in civvies, without a flick of her horsehair wig, Ms Cunneen did just that.
* Picture added by ANV at time of posting this article 231113
Full transcript of rape sentencing.
24aug02
THE DISTRICT COURT OF NEW SOUTH WALES
CRIMINAL JURISDICTION
Judge Michael John Finnane QC
FRIDAY 23 AUGUST 2002
01/11/0877
Regina v H.
SENTENCE
HIS HONOUR:
X was the leader of a brutal gang of rapists, who on three occasions, raped four young women. His activities and those of his gang spread terror in Sydney in August 2000, just before the commencement of the Olympic Games.
The gang consisted of varying numbers of men, up to about fourteen. Not all of them have been caught. Those who have been caught and brought to justice were either identified by the victims or pleaded guilty because evidence had been found to connect them with the offences.
The activities of the gang were organised by the use of mobile phones and there was a considerable degree of planning and co-ordination involved in each set of attacks.
As is common with rapists, the gang members treated each of their victims with callous indifference and considerable cruelty.
H was a member of this gang and in common with X, Y, Chami, Hajeid, X1, Z, M and M1 participated in rape episodes in which each of these offenders was involved. He participated in the rapes of Miss A and Miss B on 10th August 2000 and was one of the 14 rapists to attack Miss C on 30th August 2000.
Apart from his participation in those two episodes, he with three other males detained Miss E on a train, indecently assaulted her, committed acts of indecency towards her and committed a series of common assaults. She was 14 years old.
The courts must attempt to protect society from the possibility that those who have been caught will engage in this type of activity again and the sentences which I impose have as their principal aim, the protection of society, but, as my reasons will indicate, I also give weight to evidence that H is remorseful, that he can be rehabilitated and that he has some intellectual disability. The combination of these factors, together with the fact that he has pleaded guilty from an early stage, has resulted in my imposition of sentences which separately and in total are less than the sentences imposed on X and Hajeid who expressed no remorse, called no evidence and offered no reason for me to exercise leniency in any way.
Sentencing Principles
The principles upon which I must act in sentencing this offender are laid down by Statute and in case law. The statutory provisions are are now expressed in Section 21A of the Crimes( Sentencing Procedure) Act,1999. This section came into force only on 15 April 2002 and applies only to proceedings which commenced after that date. All
the proceedings against H had commenced before this date, but it is convenient to set out the provisions of the Act, because the principles have in practice been applied for many years.
Crimes ( Sentencing Procedure) Act,1999
Section 21A. General sentencing principles
(1) In determining the sentence to be imposed on an offender, a court must impose a sentence of a severity that is appropriate in all the circumstances of the case.
(2) For that purpose, the court must take into account such of the following matters as are relevant and known to the court:
(a) the nature and circumstances of the case,
(b) if the offence forms part of a course of conduct consisting of a series of criminal acts---that course of conduct,
(c) the personal circumstances of any victim of the offence, including:
(i) the age of the victim (particularly if the victim is very old or very young), and
(ii) any physical or mental disability of the victim, and
(iii) any vulnerability of the victim arising because of the nature of the victim's occupation,
(d) any injury, loss or damage resulting from the offence,
(e) the degree to which the offender has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence, or
(ii) in any other manner,
(f) the need to deter the offender or other persons from committing an offence of the same or a similar character,
(g) the need to protect the community from the offender,
(h) the need to ensure that the offender is adequately punished for the offence,
i) the character, antecedents, cultural background, age, means and physical or mental condition of the offender,
(j) the prospect of rehabilitation of the offender.
(3) In addition, in determining whether a sentence under Division 2 or 3 of Part 2 is appropriate, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender under that sentence.
(4) The matters to be taken into account by a court under this section are in addition to any other matters that are required or permitted to be taken into account by the court under this Act or any other law.
(5) This section does not apply to the determination of a sentence if proceedings (other than committal proceedings) for the offence were commenced in a court before the commencement of this section.
. I have paid particular regard to the judgment of the Court of Criminal Appeal in Regina v AEM and others.([2002]
CCA 58 ).
In my opinion, that decision is important because it gives guidance on the correct principles to apply in sentencing for offences of sexual intercourse without consent in circumstances of aggravation, where the aggravation alleged is that the offence was committed in company, where the offenders were young and the victims were young.
There are, of course, significant factual differences between the facts of that case and the facts of these three cases. However, each of the accused in Regina v AEM and others, pleaded guilty well before trial, just as H has done and the sentences imposed by the Court of Criminal Appeal were imposed on that basis. The case came before the
Court of Criminal Appeal as a Crown Appeal and the Court made it plain that although it increased the sentences significantly, the principle of Double Jeopardy meant that the sentences it imposed were the least that could properly have been imposed by the sentencing judge (See Judgment paras 144 and 145).
Regina v AEM and others, also involved threats to kill, the use of a knife to enforce compliance and forcible vaginal sex against one victim who was menstruating at the time.
The Court of Criminal Appeal also made it clear that these were adult offences and the offenders deserved to be sentenced on that basis. Clearly, a trial judge sentencing should give serious consideration to imposing sentences which are more severe in respect of such offences than the sentences imposed by the Court of Criminal Appeal.
4th August 2000 – a train going to Punchbowl.
Miss E who was 14 years old was returning to Punchbowl by train from the city where she had been doing some part time work. She was still a schoolgirl. It was probably about 8.20pm when four males approached her. The offender, H, took the leading role in what happened.
One of them called her by her first name, probably because he attended the same school, but she did not know any of them.
One of them asked her: " Do you suck?". Being an assertive young woman, she told him in no uncertain terms what shethought.
H sat beside her, put his arm around her in a rough fashion and placed his right hand on her thigh. He tried to move this up to her groin area and he then said:
" Will you fuck me? Come on, you'll like it. It' s really big"
She pulled his hand from her thigh and tried to remove his other arm. The moving of his hand up her thigh constitutes the form 1 offence of aggravated indecent assault.
He then put his face close to hers and said : " You're a slut, will you come out with me?" and made various other unpleasant remarks.
She pushed him away, but he and the others persisted in this very unpleasant and harassing conduct.
In the course of this, she was punched twice and threatened her with violence. She also was grabbed around the neck by one of this gang who put a condom in her face and said: " come for a fuck." This assault was another form 1 offence and the punching was another form one offence.
H pulled down his pants, exposed his penis. He then put a condom on it and proceeded to masturbate in front of her, although she turned her head away. This was count one on the indictment, the committing of an act of indecency.
Miss E then said to H :" you wonder why people don't like the Lebanese". He then slapped her. This is count two on the indictment, a charge of common assault.
The other males laughed when H slapped her. H got a call on his mobile phone and said to the caller in English:" I've got a slut with me, bro, come to Punchbowl". Having regard to the other evidence to which I have referred, and to evidence given in the trials relating to offences against Misses A,B and C that H and X were frequent callers to one another, it seems likely to me that he was in fact talking to X. He certainly was not talking to any of his brothers, who are completely innocent men. I am satisfied beyond reasonable doubt that he and the caller were planning to abduct Miss E for the purposes of rape by H and other men.
H then pushed his crutch up to her face and said "come for a fuck." She was unable to push him away. This is the subject of a Form one offence of committing an act of indecency. He then demanded that she give him a "head job" and told her that she would have to give a head job to the others too. They all laughed.
He then placed his arm around her waist and began rubbing her legs before touching her on the vagina outside her clothes. This was the subject of count 3 , aggravated indecent assault ( aggravated , because she was under the age of 16 years.)
H and the others kept her under their close control, which is the subject of count 4 of detaining her for advantage.
They kept hold of her as they were getting out of the train at Punchbowl. As they were alighting, H, who had hold of her, pointed out a man in the distance and said: my friend wants a head job." She then broke free, ran up the stairs, got to her home and told her mother what had happened. Mother and daughter then ran back towards the station. H and the others were still there and someone in the group said loudly and contemptuously, :" Here comes the slut's mother."
These offences were very serious. H and the others were prepared to attack a 14 year old innocent and helpless victim on a public train, assault her, insult her, sexually molest her and kidnap her, obviously intending to do worse after they got off the train.
H and the others were bullies, cowards, and acted in a contemptible and mean way. These crimes warrant stern punishment. A message must go out to any like minded individuals, no matter what their age, that all persons are entitled to travel in public transport with the protection of their safety guaranteed by law. If anyone should take it on himself to harm a fellow traveller, he should expect to receive a heavy sentence for doing so. Those doing this as a prelude to gang rape should expect very severe sentences.
Northcote Park Greenacre 10 August 2000.
Miss A and Miss B were together at the Mall at Chatswood. It was a Thursday night and both of them had been at the shopping centre, browsing around. Eight men, of whom X was one, and which included Y, Hajeid, H and another man to be known hereafter as S1, approached them and persuaded them to accompany them in two cars.
Miss B was quite keen to go, but Miss A went only because she felt she should accompany her friend.
Both got into a white van, which contained four of the men. The other four men got into a red car. Y, H and Hajeid were passengers in the red car.
The white van had no seats in the back and it was to this area that Miss A and Miss B went. X introduced himself to them as Adam and claimed he was 22 years old.
All the men, being of Lebanese origin, spoke Arabic and at various times during the night, the men in each car communicated with one another in that language, using mobile phones. Neither of the victims understood Arabic.
Y, Hajeid, X and H came from the Greenacre area and it seems likely to me that all the others came from this same area. It was to a park in this area that the men in the van and those in the car went to for the purposes of committing the offences of which they were convicted. H and S1 pleaded guilty before trial.
I cannot be sure precisely when the plan that these eight men should sexually assault their two victims was hatched but the facts establish beyond reasonable doubt, in my opinion, that the plan had been agreed on before the van got to the park at Greenacre. I come to this conclusion because there was evidence in the trial, which was in no doubt that there was almost constant communication between the men in the two vehicles from the time they left Chatswood and the time they arrived at Greenacre. This communication was by mobile phone calls. Some of it was in English, but much of it was in Arabic.
In my opinion, the almost constant telephone communication, together with the fact that the men in the red car, as I shall recount, arrived at the park at Greenacre just after X had told Miss A that she would be bashed if she did not have oral sex with him, enables me to conclude, beyond reasonable doubt that the crimes committed by X, Y, Hajeid and their companions were carefully planned and well co-ordinated.
The two victims were in their last year at school and believed, perhaps foolishly, that the men, who were all young, would treat them well and give them some marijuana to smoke. In fact, both of them believed that the van would be going somewhere nearby to Chatswood and that they would be dropped to their homes after they smoked marijuana.
In fact, the van and the red car went South over the Harbour Bridge, then west onto Parramatta Road. The van stopped for a short while at a McDonald's store at Stanmore. Neither girl had expected they would be embarking on such a trip and both were surprised when they realised that the van was crossing the Harbour Bridge.
I am satisfied beyond reasonable doubt that neither of them entered the van for the purpose of having sex or believing that this was why they were being invited to go with these young men.
Neither of these young victims knew where Greenacre was and neither of them suspected that they were being taken there. Indeed, as I have already said, each was surprised to find that the van was going over the Harbour Bridge.
The van stopped at McDonald's at Stanmore and the men got out. Both young women could have left the van and Miss A did so, but Miss B stayed in the van, notwithstanding Miss A trying to get her out. Neither of them was exactly clear on where they were.
On the trip to McDonalds, X used a mobile phone to contact those in the red car and arranged with them to meet at McDonalds During this part of the journey, Miss B was with X and at one stage, she kissed him a couple of times. He asked her for oral sex on a number of occasions and she refused.
A male sitting behind Miss A kept touching her around her breasts and tried to put his hands down her pants. She resisted all these assaults.
When she got out at McDonalds, Miss A attempted to persuade Miss B to leave the van, but she would not do so. Miss
A, I am satisfied, wanted to leave these men at this stage but did not want to abandon Miss B and so she stayed with the van and the men in it.
These men then proposed to Miss A that she should engage in oral sex with them, but she refused to do so. A number of them became quite insistent and even angry, but she maintained her refusal.
I found in my reasons for sentence on 15th August 2002 that the evidence satisfied me beyond a reasonable doubt that
X, who was the eldest man in the group, was the dominant figure at all times in the white van and the one who made and received most of the mobile phone calls.
At the park, he was the person claiming to be in charge and acted as the dominant figure at all times.
I am satisfied that by this time, X and those with him, including H, had decided to force oral sex on both women when they got to Greenacre. I am also satisfied that at no time did anyone in this group of men tell either of the complainants where they were going.
On the way to the park, X , who was in the back of the van, pressed Miss A to have sex with him. She refused, but he kept pressing the point. She continued to refuse.
During this part of the journey another man was with Miss B and he pressed her to have oral sex with him. She refused to do so.
Eventually the van was driven to Northcote Park , Greenacre and all on board got out. By this time it was well after 11 p.m. The man who had been with Miss B in the second part of this trip, grabbed her by the neck and dragged her unwillingly to a spot behind a toilet block . He had her head in a headlock and she tried to get away from him. She was very scared. She saw X drag Miss A to another part of the park.
Meanwhile, X had Miss A by the hand. She went with him out of fear. He kept insisting that she have oral sex with him and she kept refusing. She could see that Miss B was being dragged to another part of the park. am satisfied that both girls were by this time in a state of emotional terror.
This state of terror in each was increased by what followed.
In the case of Miss A, X demanded oral sex repeatedly and she repeatedly refused.
They then had the following conversation:
X: "Just do it now before they come."
A " No, I don't want to.
X " if you don't do it, they will probably bash you for not doing anything. It will be in your best interests if you do it now before they come. I will tell them you don't do anything and they will leave you alone."
A "Why would they listen to you?
X "Well, I'm the oldest and they all respect me.
A" Okay, but I still don't want to do anything.
X " Just do it now and get it over and done with before they come."
At this time the red car in which Y, H and Hajeid were, with two other men, pulled up behind the white van and Miss A heard a number of male voices which were shouting and yelling.
X then forced oral sex on Miss A, even though she continued to say she did not want to do it.
When he finished, she stood up and walked away from where he was. The four men from the red vehicle came running towards her. One of them crash tackled her to the ground. While she was on the ground, some of the men started to kick her about her legs. When they stopped kicking her, she was pulled to her feet and one of the four men from the red car, picked her up on his shoulder and threw her into some bushes. She was screaming and crying at this stage.
Y, H and Hajeid all participated in these assaults on her. This episode of assault was the subject of the first item in the Schedule of offences which the offender H asked to be taken into account when I sentenced him in relation to the eighth count in the indictment. These assaults were violent and calculated to cause fear and alarm. It is clear beyond doubt, in my opinion, that the men concerned and X intended by these assaults to achieve a total physical domination of Miss A and to crush any resistance she might have had.
From this time, until he left the park, H joined with his co- accused and the other men present in the park in detaining Miss A for advantage and in detaining Miss B for advantage, in each case for himself, and six other males.
X then approached Miss A again. She was by this time sitting on a park seat. Before speaking to her, he motioned the other assailants from the red car to go away and they stood some distance away in a group, apparently obeying him.
The following conversation then occurred:
X. "I told you it would happen. I warned you what they would do.
A. You didn't tell me they were going to get violent and tackle me.
X. Yeah, well if you don't do what they want to do, that's what they do. So, do it now. I'll go over and tell them you don't do anything and they will leave you alone. Do you want to get bashed or not?
A. No."
He then had oral sex with her for the second time. He ejaculated in her mouth and she spat out the semen on the ground.
When she did this, X walked away and the four men, who included Y, H and Hajeid approached her and all stood around her, demanding "head jobs". After further threats of violence from these men, she had non consensual oral sex with a man described by her as 'the fat male', ie, H. He said to her:" There's no point crying, it won't get you anywhere."
The male described by her as the "WRX male", then said, " Listen guys, I'm the one with the WRX, I'm next." He then demanded oral sex or her would bash her, he pulled down his pants and had non- consensual oral sex with her.
H then came running back and again demanded oral sex, saying he would bash her if he didn't get it, but he was pushed away by another man who also forced non consensual oral sex on her, after putting a condom on his penis.
During this sexual assault, this man yelled out " She's not doing it right. This Chick's shit at head jobs".
H assaulted her sexually again, after uttering further threats and Y also sexually assaulted her, after threatening to bash her. Both of these sexual assaults were oral.
Following this, a group of men ran over to her. She could not identify them. They were not from the red car. One of them said:
"Your friend told us you had AIDS or herpes or hepatitis or something. Is it true?
Miss A said:" No. I don't. I don't think my friend would have said that because I don't."
The man then said:" I swear to God, if you're lying, we'll get you."
This last exchange in itself indicates the type of person involved in these incidents.
Following this, she saw that the red car had arrived and that the four occupants were in the park. These four men then surrounded her and demanded oral sex. She inquired about her friend and caught a glimpse of her near some bushes. One of the men assaulted her, by snatching a necklace from her neck and breaking it. Hajeid, then grabbed her by the arm and pulled her behind the toilet block. She struggled and protested. A conversation ensued:
"Hajeid. Give me a head job.
Miss B. No. I want to go home.
Hajeid. I'll take you home after you give me a head job.
Miss B . No."
She then tried to walk away and was assaulted by another male, the man who had first had non consensual oral sex with her.
Hajeid then grabbed her, forced her behind the toilet block, onto her knees and holding her head, forced his penis into her mouth. He ejaculated into her mouth and she spat the semen onto the ground.
Following this, Hajeid, H, Y and the other men from the red car got into it and left the park.
However, the attacks on the two victims continued. It is not necessary for the purposes of the present proceedings that I should again set them out in detail.
Following these terrible events, X and his companions then abandoned these two helpless victims, late at night, in a park in Greenacre. They had no phones, no money, did not know where they were. They were distraught, crying and feeling the effects of these repeated rapes and assaults. They were terrified.
Fortunately, a man and his wife were returning home in a car at the time, saw them and rescued them.
The evidence at the trial established that each of the accused and some others had regular mobile phone contact with one another. I have set out earlier how these phones were used to co-ordinate the arrival of the red car just as X was prophesying what would happen to Miss A if she did not co-operate with him.
These crimes are very serious crimes. Sexual intercourse without consent is always a serious crime. It goes without saying that a woman is always entitled to refuse to engage in sexual intercourse. Consent can be refused at any time, even if previously, the woman may have indicated a willingness to engage in sexual activity of some kind. There is evidence of some kissing and cuddling engaged in by Miss B, but it is clear beyond doubt that each of Miss A and Miss B at all stages made it plain they would not engage in any form of sexual intercourse.
What makes the sexual assault offences in this case very serious, in my opinion, is that they were all committed in company of the assailant and of seven other men. This was the aggravating feature charged and proved.
Additionally, each sexual assault offence charged against H and his companions, each assault offence and each offence of kidnapping was a joint criminal enterprise between him and those with him.
However, H was charged with and pleaded guilty to fewer offences than those proved at trial against X, Y and Hajeid. He has pleaded guilty to two counts of detaining for advantage, two counts of aggravated sexual intercourse without consent against Miss A, and one count of aggravated sexual intercourse without consent against Miss B. He has asked that I take two charges of assault into account when I sentence him in relation to Count 8 on the indictment, that being the count in respect of his actual act of sexual intercourse with Miss A. The other counts of aggravated sexual intercourse without consent related to offences actually committed by others in the group, for which he was liable as a Principal in the second degree.
Y and Hajeid were convicted of seven counts of aggravated sexual intercourse without consent, whilse X was convicted of nine counts of aggravated sexual intercourse without consent, three of them being for actual acts committed by him.
Of course, it must not be forgotten that H has also pleaded guilty to one offence of aggravated sexual assault against Miss C and a count of detaining Miss C and he also faces sentence for offences of aggravated indecent assault, acts of indecency, assaults and detention in relation to Miss E. In an over all sense, he has been involved in more incidents than Chami or Hajeid, but less than X. As I have just mentioned, when it comes to sentence for the offences against Miss A and Miss B, he must receive less than that given to X and Hajeid because of this and also because of the other factors of an early plea of guilty, remorse , his intellectual disability and his prospects of rehabilitation. When it comes to the offences against Miss C, I consider his criminality is less than that of Chami or X and his sentences for those offences will reflect that and the other factors of an early plea of guilty, remorse , his intellectual disability and his prospects of rehabilitation.
However, when it comes to sentence for the offences against Miss E, his sentence must be appropriately severe.
3. Bankstown 30th August 2000
Facts:
On 30th August 2000, Miss C was raped by 14 men in a series of orgiastic attacks. The first such rapes occurred in toilets in Marion Street Bankstown. Here she was sexually assaulted by four men, one of them assaulting her twice.
She was then passed over to another group. I am satisfied beyond reasonable doubt that this group, in a black car, had been summoned to the scene by mobile phone messages passed on by the first group of attackers. The men in this car talked with some of the attackers from the toilets and one of those attackers joined them.
There were three men in this second group, H, who was . one of them, had been with the group which sexually assaulted her in the carpark toilets, but he had not assaulted her there. In fact, he behaved in a somewhat irrational way, running in and out of the toilets and shouting out loudly at one of the assailants of Miss C.
She eventually found herself on her own and when she left the toilets, she was induced by a dishonest woman, who stole her money, to accompany her to a black car nearby. H was in this car and he and some other men nearby promised they would take her home. This was a ruse to get her into the car.
She was then taken by this car to a carpark near the Bankstown Trotting Club. There, H got out of the car with her and despite her protests, forced oral sex on her in a shed at the carpark. He is a powerfully built man, she is very slightly built and I have no doubt at all that she submitted to this out of fear for her life. Despite her protests, she was vaginally raped once by another man in this car to whom Miss C was given by H and orally raped as well by one of the men in the car. H was not actually present when these rapes occurred, but I am certain he knew that they would occur. H was in mobile phone contact with X at this time and I am satisfied beyond reasonable doubt that between them arrangements were made for the holding of Miss C until X, Chami, Y and another man, known only as Nike Sam, arrived.
When the men who were with H in the black car finished with Miss C , a two door red sedan driven by Chami, and with X, another man known only as Nike Sam and Y, as his passengers pulled up in the carpark near the Bankstown Trotting Club. Y was the front seat passenger.
The complainant saw the occupants of the black car go over to the red car and talk to its occupants. This enables me to conclude beyond reasonable doubt that the men in the black car, including H told the men in the red car of the rapes which had so far occurred.
If there were any doubt about this matter, in his record of interview, Chami, who was in the red car, claimed ( page 2) " Well, I copped a phone call from X, he told me there's a slut at Bankstown Trotting Club".
Thereafter, Miss C was raped by the men in the red car and another group of men in another black car. This last group included X1, the brother of X. I set out the details of these events in my reasons for sentence concerning X.
Y,X and Hajeid were all involved in the attacks on 10th August 2000 on Miss A and Miss B. X and his brother, X1 were involved in similar attacks on Miss D on 12th August 2000.
On 14 June, 2002, I sentenced Hajeid for his part in these attacks on Miss A and Miss B.
In that matter, I imposed sentences of 15 years imprisonment for each offence of non consensual sexual intercourse and a sentence of 5 years imprisonment for each offence of detaining for advantage.
I cumulated some sentences and made some concurrent, with the result that I imposed a head sentence on Hajeid of 23 years and a non parole period of 15 years.
On 9th August 2002, I sentenced Chami for an offence of detention for advantage, for which I imposed a sentence of 7 years imprisonment and sexual intercourse without consent in circumstances of aggravation, for which I imposed a sentence of 15 years. I partly cumulated these sentences and imposed a total head sentence of 18 years with a non parole period of 10 years and 6 months.
On 15th August, 2002, I sentenced X for his part in the events on 10th , 12th and 30th August 2002 and I imposed a head sentence of 55 years and a non parole period of close to 40 years.
The prisoner, H, participated in the gang rapes on 10th, and 30th August 2000 as well as the events on 4th August 2000. As I have earlier observed, what occurred on 30th August was a series of gang rapes on that night
As I have earlier remarked, the crimes on 10th , 12th and 30th August 2000 were carefully planned and co-ordinated.
The degree of planning and co-ordination by use of mobile phones distinguishes these crimes from other cases of gang rape which have been reported from time to time, which are often, if not usually, perpetrated by intoxicated men, who have seized an opportunity which has been presented to them. It is also clear to me that what H participated in on 4th August was a series of violent and disgusting acts which were a prelude to other sexual assaults which clearly were being organised as he and the others were assaulting Miss E.
Each crime was callous, violent, sordid and degrading.
Moreover, the crimes were not something which happened on the spur of the moment and none of the assailants were in any way affected by alcohol or drugs.
The crimes were planned and premeditated. In each instance they involved gang activity and the selection of a helpless young female victim.
In my opinion, the evidence at the three trials establishes beyond reasonable doubt that X was the leader of the gang on all occasions and he must be regarded as the worst of all the offenders. He is a menace to society.
He has declined to give any explanation of the reasons for these attacks and refuses to express any remorse or contrition.
Chami and Hajeid were guilty of significant crimes, but when I imposed sentences on them, I imposed lesser sentences because their criminal activities, though significant, were not as serious as the total criminal behaviour of X. I regard H as being entitled to some leniency for reasons I have already mentioned.
Submissions on sentence
In the case of H, a considerable amount of material was presented concerning his background, his mental state, his remorse and his prospects for rehabilitation. None of the other offenders so far sentenced presented any meaningful material at all, though Chami did present some information about his background, his previous good character and he
evinced some slight expressions of remorse.
X and Hajeid defiantly denied their guilt. X went further by evincing contempt for the victims and the Court.
Because I have this material, it is possible for me to consider imposing sentences of a lesser nature than those imposed on the others and in giving consideration to H's prospects of rehabilitation, to decide if that should result in a longer than usual period on parole.
Background of the offender.
He was born on 21st April 1983 and is the youngest of eight children. His parents came from Lebanon. His mother was married at the age of eleven years and his eldest brother, who is 35 years old is only 12 years younger than his mother. With the exception of his eldest brother, his brothers and sisters all suffer from physical or mental disabilities. One of his sisters is both mentally and physically extremely disabled, requiring her mother's full time care.
He has been assessed by competent psychologists as being mildly retarded, with an IQ of 67, which puts him in the lowest 1% of the population.
A psychosexual assessment of him reveals that there is at present a moderate risk of him re-offending.
During his young and teenage years, he would fly into sudden explosions of anger, damaging furniture and punching walls. His eldest brother told me that he would not seem to comprehend at times what it was that he was doing.
He was troublesome at school, but the family for reasons which I think were related to poverty, could not take him to recommended medical and psychological resources.
Although his brother warned him about his associates, he ignored the warnings and in his teenage years began to hang out with undesirable people of his own age. Because of his intellectual difficulties he went to a special school instead of the usual high school and left when he was about 14 years old. He has difficulty in reading and arithmetic and finds learning difficult. However, in the controlled environment of Kariong Juvenile Detention Centre, he has done a number of courses successfully.
A question has arisen as to whether he is a paranoid schizophrenic. Dr Wade,who saw him in July, considers that he has symptoms suggestive of this and has prescribed treatment. These symptoms include hallucinations involving the hearing of voices. Dr Westmore in earlier reports did not feel he was suffering from any sort of mental illness. At present, according to reports of Kariong staff, he isolates himself from other inmates.
His family clearly love him and his father and eldest brother attend court. The family have taken steps to bring it to his attention that they disapprove of his conduct, but at the same time, they want to encourage him to rehabilitate.
Remorse or contrition.
He has expressed remorse and concern about the effect of his actions on the girls who were his victims. He is apparently quite severely affected by his realisation of the enormity of his offences. So far, he is the only offender to have expressed any concern for these girls and the only one to have clearly expressed any remorse. I am prepared to accept that his feelings of remorse and for the victims are genuine.
His future life in custody.
Whilst there are no programmes in Juvenile Detention Centres for the intellectually impaired, there are sex offender programmes and other useful programmes.
The Department of Corrective Services at present do not have sufficient beds for intellectually disabled prisoners, but will have more in two years time. In my view, his intellectual and mental problems are of such severity that he should not be housed in the main part of an adult prison. I recommend to that Department that he be placed in a unit
for intellectually disabled prisoners when he is admitted into the prison system.
In the meantime, I direct that such he serve his sentence in a detention centre until he reaches the age of 21 years. I make this order because I am satisfied there are special circumstances in his case, namely his mental and intellectual disabilities, which cannot be catered for in an adult prison for at least two years.
Victim Impact Statement
Each of the victims has submitted victim impact statements. I have considered each one carefully. Clearly each victim has suffered greatly and will continue to suffer. The sentences which I impose will take that into account.
I would like to commend each of the complainants for their courage and strength in these proceedings. The people of this State owe them a great debt. If they had not been prepared to come forward and to persist this offender and other members of this dangerous group of offenders could not have been brought to justice.
General legal considerations
I have set out earlier in this judgment my views on the seriousness of the offences and the features that distinguish H from X, Hajeid and Chami. He has pleaded guilty at a very early stage and is entitled to a discount of 25% of each sentence because of this. Early pleas of guilty should always be encouraged as they facilitate the course of justice, they avoid the need for long, harrowing and expensive trials and in some cases at least, this being one, they indicate remorse on the part of the offender.
He was clearly responsible for his own actions and is liable to punishment accordingly, but it remains true that he is intellectually and possibly mentally disabled. In the circumstances, the principles of general and specific deterrence are of less significance than they would be if he were intellectually and mentally normal.
He has shown some insight into his problems and has engaged in the programmes offered to him in Kariong. There is a reasonable prospect of rehabilitation if he is given the benefit of programmes designed for the intellectually and mentally disabled.
Therefore, I intend to ensure that whilst he receives quite a severe sentence, he will have a longer than usual non parole period.
Sentence
The prisoner has been in custody since 22nd November 2001. He also spent a further earlier period of custody of 35 days . I propose to take those periods into account.
4th August 2000 – on the train at Punchbowl
The maximum sentences for count 1, committing an act of indecency, and count 2, common assault, is 2 years imprisonment. I intend after applying the discount of 25% to sentence him to 6 months imprisonment on each of those counts.
The offence of aggravated indecent assault carries a maximum sentence of 7 years. The circumstances of this offence make it an offence of the worst type. I therefore intend to give him the maximum sentence less a discount of 25% for the plea of guilty, ie a sentence of 5 years and 3 months.
In relation to count 4, a charge of detention, I consider this is an offence, which when considered with the offences in the Schedule to Form 1, is an offence which is comparable to the offence of detention committed by Chami against Miss C. Therefore, after applying the discount of 25%, I will impose on him a sentence of 5 years and 3 months. Northcote Park – 10th August 2000.
Hajeid received sentences of 15 years imprisonment on each count of aggravated sexual intercourse without consent, 5 years for each offence of detention for advantage and 2 years for each assault.
Each offence he committed was of a comparable nature to that of Hajeid, but because of the discount of 25 %, he will receive a sentence of 11 years and 3 months for each offence of aggravated sexual assault, 3 years and 9 months for each offence of detention for advantage and 1 year and 6 months for each assault. When imposing sentence for the offence of aggravated sexual assault actually committed by him ( count 8 ) I have taken into account the matters in the Form one schedule, but I consider that the appropriate sentence is still 11 years and 3 months imprisonment.
Bankstown – 30th August 2000 Chami received 15 years for an offence of aggravated sexual intercourse without consent and 7 years for detention for advantage. However, the detention by Chami was worse than that effected by H, since Chami made threats with a weapon and made it possible for X and another man to carry out a series of sexual assaults against Miss C in his car as he was driving.
I consider that the sentences for these offences should be the same as for similar offences committed by him against Miss A and Miss B, ie 11 years and 3 months for aggravated sexual assault and 3 years and 9 months for detention for advantage
I turn then to the particular offences and the particular sentences. I am going to detail the sentence. I make it plain that but for the principle of totality these sentences would in total be much longer. The principle of totality requires that having considered all the individual sentences, I look at the effect of all of them. I try to work out the criminality involved as a total matter and I then impose a sentence which is consonant with that criminality. The principle of totality means that particular individual sentences in a total sentence could receive a lesser sentence than if they were imposed on a sole offender, one for one offence. If that were not so and I just cumulated every sentence,the offender would get a sentence that was utterly unrealistic.
The sentences which I impose are set out hereunder. They result in the offender receiving a head sentence of 25 years and a non parole period of 15 years, reflecting the very special circumstances of his remorse, youth, intellectual and mental state and his real prospects of rehabilitation. To ensure that he receives a non parole period of 15 years,
the non parole period on his last sentence is very much shortened. I have taken into account the 35 days he served by reducing his final release date by that number of days.
Counts 1 and 2. I sentence the offender to 6 months imprisonment on each count, such sentences to be concurrent with one another and with the sentence for count 3.
Each sentence will commence on 22nd November 2000 and will conclude on 21 May 2001.
Count 3. I sentence the offender to imprisonment as a fixed term of 5 years and 3 months. The sentence will commence on 22 November 2000 and will conclude on 21 February 2006.
Count 4. I sentence the offender to imprisonment as a fixed term of 5 years and 3 months. That sentence will commence on 21st August 2001 and will conclude on 20th November 2006
Count 5. I sentence the offender to imprisonment as a fixed term of 3 years and 9 months. This sentence is to be served concurrently with sentences for counts 7 and 8. The sentence will commence on 21st August 2004 and will conclude on 20th May 2008.
Count 6. I sentence the offender to imprisonment for a period of 11 years and 3 months. This sentence is to be served concurrently with the sentence for count 9. The sentence will commence on 21st August 2010 and will conclude on 21st November 2021. There will be a non parole period of 4 years, which will commence on 21st August 2010 and will conclude on 20th August 2014.
Count 7. I sentence the offender to imprisonment for a period of 11 years and 3 months. This sentence will be served concurrently with sentences for counts 5 and 8. The sentence will commence on 21st August 2004 and will conclude on 20th November 2016. There will be a non parole period of 6 years to commence on 21st August 2004 and to conclude on 20th August 2010.
Count 8. I sentence the offender to imprisonment for a period of 11 years and 3 months. This sentence will be served concurrently with sentences for counts 5 and 7 and partly cumulatively on count 4. The sentence will commence on 21st August 2004 and will conclude on 20th November 2015. There will be a non parole period of 6 years to commence on 21st August 2004 and to conclude on 20th August 2010.
Count 9. I sentence the offender to imprisonment for a period of 11 years and 3 months. This sentence is to be served concurrently with the sentence for count 6 and partly cumulatively on the sentence for count 8. . The sentence will commence on 21st August 2010 and will conclude on 21st November 2021. There will be a non parole period of 4 years, which will commence on 21st August 2010 and will conclude on 20th August 2014.
Count 10. I sentence the offender to imprisonment for a period of 3 years and 9 months as a fixed term. The sentence is to be served concurrently with the sentence for count 11. The sentence is commence on 21st August 2014 and is to conclude on 20th May 2018.
Count 11.
I sentence the offender to imprisonment for a period of 11 years and 3 months. This sentence is to be served concurrently with the sentence for count 10 and partly cumulatively on the sentence for count 9. The sentence is to commence on 21st August 2014 and is to conclude, having regard to an additional 35 days already served, on 15th October 2025. Because of the very special circumstances of the case and to ensure that the offender may be released to parole 15 years after commencing his sentence, I specify a non parole period that is to commence on 21st August 2014 and is to conclude on 15th October 2015 on which date the prisoner is to be released on parole. He is then to submit to supervision by the Probation and Parole Service for the remainder of his term of imprisonment or until that Service releases him from further parole obligations. He is to be released from imprisonment finally on 15th October 2025.
I recommend that the Department of Corrective Services permit him to serve his sentence in a Unit for Developmentally delayed prisoners. I direct that he serve his sentence until the age of 21 years in a Juvenile institution.
Other Matters – suppression of his name.
I have given very special consideration to the lifting of the suppression order on the name of the offender and in particular to the provisions of section 11 of the Children (Criminal Proceedings) Act 1987.
Subsection 4B of that Section permits me to lift the suppression order at this point as I have sentenced the offender.
However, I am prohibited by subsection 4C from taking this step unless I am satisfied that to do so is in the interests of justice and that the prejudice to the person, ie the offender himself, arising from the publication or broadcasting of his name does not outweigh those interests. The burden of establishing the matters referred to under subsection 4 C lies on the Crown.
The Crown has submitted that it is in the interests of justice that the suppression order be lifted, but it cannot point to any particular matter to justify this submission other than the fact that it is generally considered to be in the public interest that all proceedings in a criminal court be conducted in public.
Whilst I agree that in general that is the position, I am of the opinion that in this case, where the offender is a person who has intellectual and mental disabilities, it is not in the interests of justice that the suppression order be lifted. Further, I consider that his special problems are such that the broadcasting or publishing of his name would cause him such prejudice that I could not be satisfied that this prejudice did not outweigh the interests of maintaining the suppression order.
The suppression order will remain.
The offender may be removed.
