Sentence slashed: gang rapes not 'worst category' (1 Viewer)

erawamai

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Do you have a criticism of the judgment?

When it comes to sentencing the maximun can only be given out when you cannot imagine a worse case.

From what I read in the judgment, Skaff did not participate. He generally encouraged the others and was there while it happened. Hence not the worst case scenario.


Studdert said:
Ground 6: His Honour erred in not correctly applying the principles in Veen v The Queen (No. 2) (1987) 164 CLR 465

Ground 10: The sentences were individually and collectively manifestly excessive

...


116 A basic objective of any sentencing exercise is that the sentence imposed should be reasonably proportionate to the offence committed and its attendant circumstances. The expression of the ground under consideration draws attention to the decision in Veen, where in the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ their Honours said (at 472):

“The principle of proportionality is now firmly established in this country. It was the unanimous view of the court in Veen (No. 1) that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender: (1979) 143 CLR 467, 468, 482-483, and 495.”

117 And, later (at 473):

“It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing a material sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.”

118 It was submitted that in this case the overall effect of the sentences imposed upon the applicant seen in the light of the remarks of the judge to which reference has been made reveal that the judge imposed sentences that were outside the principles expressed in Veen (No 2).

119 The Crown’s response to the applicant’s submissions was to draw attention to the fact that the applicant was before the judge to be sentenced for no less than eleven crimes against s 61J and other crimes, and that his criminal behaviour was such as to require due recognition of the applicant’s propensity to commit crimes of the type for which he was before the court.

120 It does not necessarily follow from the judge’s expressions to which this ground draws attention that his Honour set about determining sentences with the object of ensuring that the applicant was not released until he was incapable of committing the like offences. Consideration of ground 6 cannot be divorced from consideration of ground 10.

121 This Court has already determined when considering all the offences for which the applicant was convicted involving s 61J of the Crimes Act that none of them was in the category of the worst class of case. It does not follow from this conclusion that the offences against s 61J committed by the applicant are not to be regarded as very serious crimes. Indeed, they are to be regarded as very serious crimes, and the Crown has pointed to features to be taken into account in assessing the gravity of the offences and the overall criminality of the applicant:


(i) his offences were committed on separate occasions and concerned three different victims;

(ii) all the victims were young women, eighteen years of age, and two of them were school students;

(iii) eleven of the offences were offences against s 61J of the Crimes Act, and of those eleven offences eight of them were committed upon the one complainant, two on the second complainant and one on the third complainant;

(iv) the applicant was found to have a leadership role, a finding this Court considers to be more relevant to the events of 10 August 2000 than to those of 30 August 2000;

(v) his offences were committed at remote locations;

(vi) his offences were committed in circumstances calculated to degrade the victims;

(vii) the victims, being Ms A and Ms C, provided victim impact statements which disclose the severe impact that the offences had upon each of them. Ms B did not provide a victim impact statement, but as was observed in AEM (at para 94):
“The long term effects of the trauma invariably encountered by victims [of sexual assault] are well documented.”
(viii) the nature and extent of the company in which the various offences were committed by the applicant was relevant to the assessment of the gravity of the offences charged: see R v Way (2004) 60 NSWLR 168 at [107].

122 This Court recognises that the sentencing judge had a most difficult task to perform, not only in arriving at sentences appropriate to the various offences, but in striking a proper balance between such sentences and the principle of totality. However, notwithstanding the assessment of this Court as to the serious nature of the offences committed by the applicant, it is of the opinion that the sentences for the offences under s 61J viewed individually were manifestly excessive, and so too was the overall effect brought about by the extent of the accumulation of the sentences that were imposed. It is considered further that the overall effect reflects a departure from the principles stated in Veen (No. 2). It is also noted that the offences against s 319 of the Crimes Act attracted sentences which, according to Judicial Commission statistics, are significantly higher than any other sentences for this type of offence that have been recorded. The statistical base is limited to twenty-three cases, but in all but thirteen percent of cases the sentences have not previously exceeded three years according to these statistics, and the highest sentence previously imposed for an offence against s 319 has been one of five years imprisonment.

123 Grounds 1, 3, 5, 6, 8 and 10 have been established and the intervention of this Court is warranted. The sentences must be quashed and the applicant must be re-sentenced.
 
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supercharged

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Bilal Skaf himself getting gang raped and 'split roasted' by gay prisoners would be a suitable enough penalty
 

MoonlightSonata

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I'm really sick of these stupid criticisms.

Whether it be the politicking of politicians, the idiotic complaints by women's groups or your average layperson -- so many people who are vocal on sentencing have seriously no clue.

I don't want to inhibit people's opinions on this forum of course :) I'm just personally annoyed that people complain so absolutely dogmatically without even reading or trying to understanding the judgment or the facts.
 
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tempco

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erawamai said:
Do you have a criticism of the judgment?

When it comes to sentencing the maximun can only be given out when you cannot imagine a worse case.

From what I read in the judgment, Skaff did not participate. He generally encouraged the others and was there while it happened. Hence not the worst case scenario.
hrm, i'm juggling between the idea that him being the "leader" or the gang can be considered as the "worst case" - i mean, what could be worse than leading a bunch of rapists on to a girl? that seems to be far worse than if he had raped her himself to be at the moment.
 

erawamai

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tempco said:
hrm, i'm juggling between the idea that him being the "leader" or the gang can be considered as the "worst case" - i mean, what could be worse than leading a bunch of rapists on to a girl? that seems to be far worse than if he had raped her himself to be at the moment.
There are very very very very bad sexual assault cases and very very very bad sexual assault cases.

This case, according to the court, was not the worse case imaginable. Also the sentences were inconsistent with past sentences given.

35 As previously noted, the maximum penalty for an offence against s 61J of the Crimes Act is twenty years imprisonment. The judge imposed upon the applicant the maximum penalty for each of the nine counts of aggravated sexual intercourse arising from the events of 10 August 2000 and the judge also imposed upon him the maximum penalty for each of the two counts arising under s 61J concerning the events of 30 August 2000.

36 It is to be noted that none of the offences against s 61J of which the applicant was convicted arising from the events of 10 August 2000 involved penetration of either complainant’s vagina. Each offence charged for 10 August 2000 concerned an act of oral intercourse. The applicant forced Ms A to have oral intercourse with him, this activity being interrupted by the arrival of the second car load of offenders. The activity was resumed after Ms A had been assaulted and thrown into the bush. Following resumption, the applicant persisted in oral intercourse until he ejaculated into Ms A’s mouth. The applicant also committed an act of oral intercourse with Ms B in the circumstances previously outlined. However, the remaining offences against s 61J for which the applicant was sentenced concerning the events of 10 August 2000 were crimes concerning which others were principals in the first degree and the applicant was a principal in the second degree.
They were not the worst under section 61J of the Crimes Act. The Crown prodecutor recognised this.

42 Indeed, the Crown acknowledged in the course of submissions that there was error by the judge in imposing a sentence of twenty years imprisonment in respect of each of the offences concerning which he was a principal in the second degree. That acknowledgement is consistent with the following passage in the remarks on sentence where his Honour said (ROS 26):

“He [that is Bilal Skaf] was the ringleader. When he had actual intercourse with Miss A and Miss B he should be regarded as an offender of the worst type and in respect of each of those offences he should get the maximum sentence of twenty years. In respect of the offences of sexual intercourse without consent committed by others, he should get fifteen years on each matter…”

Essentially what the court is saying that these are not the worse cases imaginable of the crime. They do not get the top penality.
 
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Generator

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MoonlightSonata said:
I don't want to inhibit people's opinions on this forum of course :) I'm just personally annoyed that people complain so absolutely dogmatically without even reading or trying to understanding the judgment or the facts.
erawamai said:
There are very very very very bad sexual assault cases and very very very bad sexual assault cases.

This case, according to the court, was not the worse case imaginable. Also the sentences were inconsistent with past sentences given.
True to form, I see... Such an explanation is hardly going to be one that the wider population will accept, especially given the information that most would have been fed. As always, you need to elaborate and make sure that your extended response is understood by most, whether it's accepted or not.

Edit: You have both made mention of the image problem that the judicial system must address at some stage... It would be great if you both (and others) made an effort to correct the public's negative view rather than take potshots at the lay or provide poor explanations as to what transpired within the court (a poor explanation in the eyes of those without a legal mind, that is).
 
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erawamai

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Generator said:
True to form, I see... Such an explanation is hardly going to be one that the wider population will accept, especially given the information that most would have been fed. As always, you need to elaborate and make sure that your extended response is understood by most, whether it's accepted or not.
The hard thing is that it never will. It is difficult to understand how and why the court came to that decision. I can assure you that the decision wasn’t taken lightly and people didn’t come to it in an arbitrary method. We only have the judgment. We do not know what evidence was presented to the court. What arguments were made?

We can assume that judges are reasonable people who do know what justice is and do their best to make sure that it is not subverted.

For example. David Hooks in South Australia. People who convinced of the bouncer's guilt. But people from the community said he was innocent.

As previously mentioned in this forum the law is like a box. People look at the outcome rather than what is inside it.

It is hard to actually explain to people who do not have a legal background or education. It is like having an engineer having to explain stresses of concrete to a lay person who cant understand why the bridge has to have such ugly design elements.

gen said:
Edit: You have both made mention of the image problem that the judicial system must address at some stage... It would be great if you both (and others) made an effort to correct the public's negative view rather than take potshots at the lay or provide poor explanations as to what transpired within the court (in the eyes of those without a legal mind, that is).
How do you address public perception? Give the people 400 year sentences. It is hard to explain. Criminal law is very very very complex and messy. People want tougher sentences. People see guilt and culpability is clear cut. Bad/good. Victim/perpetrator. Life/death. Life and the law is never so clear cut. But it is much easier to see it that way. People categorise their lives in that way.

Pretty much all I can say of the above judgment is that.

- To get the max penalty it has to be the worst case that can perceived. The judges though that there could be worse cases. This is always strikes a raw nerve. All sexual assaults are bad but it sounds terrible to say that one is worse than the other. But in the interests of justice the law attempts to give the person what they deserve taking into account numerous circumstances. It would do an injustice to the person, despite committing an offence, to give them a sentence that was inadequate or too harsh.

- Based on past s 61J cases these were not the WORST examples of sexual assault (the s61J provision). The sentences were also inconsistent with past sentences for similar crimes. The seriousness of the sentence was a result of the s 61J offences in conjunction with the group sexual assault charges.
 
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Generator

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As hard as it may be to explain, the effort is (or at least it should be) appreciated.

For what it's worth, prior to this thread I was aware of the basic reasoning behind the reduced (yet still lengthy) sentence, but I doubt that many others would either have or take the time to seek clarification, be it via another media source or by asking someone such as yourself for a rudimentary explanation.
 

erawamai

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Generator said:
As hard as it may be to explain, the effort is (or at least it should be) appreciated.

For what it's worth, prior to this thread I was aware of the basic reasoning behind the reduced (yet still lengthy) sentence, but I doubt that many others would either have or take the time to seek clarification, be it via another media source or by asking someone such as yourself for a rudimentary explanation.
Well I havn't read the judgment. I brushed through it. I dont have the time to read it, like most people.

Courts are very good at finding differences that the community as a whole has a hard time understanding the rationale behind.
 

Rafy

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I read the judgment in full.

The reasons are clear why the original sentence was quashed. The media and the government seems to take a shallow one dimenional view of it all. Unfortunately the law cannot take such a view, and must examine the whole story. The judges are not fools. They dont just randomly wake up one morning and say oh lets randomly slash a rapists sentence! There are complex (and simple) arguments behind it all.

Let the judiciary do their job.

(Although i do relise that reform may be needed when the law system does not adequately mirror the mores and values of the people that it serves.)
 

MoonlightSonata

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Generator said:
True to form, I see... Such an explanation is hardly going to be one that the wider population will accept, especially given the information that most would have been fed. As always, you need to elaborate and make sure that your extended response is understood by most, whether it's accepted or not.

Edit: You have both made mention of the image problem that the judicial system must address at some stage... It would be great if you both (and others) made an effort to correct the public's negative view rather than take potshots at the lay or provide poor explanations as to what transpired within the court (a poor explanation in the eyes of those without a legal mind, that is).
I understand and agree, it's just (a) I don't have time at the moment to give an extensive summary of the reasoning and (b) erawamai seems to be/has covered the basic issue anyway. It was more of a general comment, but I certainly take your point.

Another issue is that, because the laws are actually made by Parliament, the attorney-general should actually be defending the courts' decisions and reasoning. These days it seems to be the complete opposite for Federal politics and a fairly weak or neutral stance for state politics. Debus should have been a lot more supportive.

I may go read the judgment properly in the future and try to detail it here... but right now I have an essay on victim impact statements due =/

(which may I say I am completely against :p)
 

erawamai

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MoonlightSonata said:
I may go read the judgment properly in the future and try to detail it here... but right now I have an essay on victim impact statements due =/

(which may I say I am completely against :p)
Isn't that a controversial position moonlight?
 

erawamai

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discex said:
Yet if it was your sister or mother who was raped, i can guarantee you would not be saying this.
You would want them murdered wouldn't you ;)
 

erawamai

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discex said:
The rapists? Who wouldn't?
Some mens rights groups don't like the current laws. they favour women they say. It is too easy for a women to say she didn't consent when she may have at the time.

...and are all sexual assaults equally bad? What about people who sexually harass others?
 

erawamai

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discex said:
Don't start that bullcrap. Rapists need to go to prison for the rest of their lives and that's that. And it's not MENS groups, as MENS groups don't support rapists.
Mens groups tend to not like the sexual assaut laws. They believe it is too easy for a women to prove sexual assault in terms of proving they did not consent.

It is Civil Liberties who should all be lined up and castrated before being hit over the head one thousand times with a 6 foot lead bar.
I bet if you managed to get into a situation where a women accused you of sexual assault (wronfully) you would not be calling for life sentences. Especially when lack of consent doesn't have to be actual.

Sexual Assault.

Sexual Assault is having sexual intercourse with a person without their consent knowing that they are not consenting: s. 61I. See also Morgan [1976] AC 182, McEwan [1979] 2 NSWLR 926.

Recklessness indifference as to the consent of the victim will suffice. Thus where the accused is aware that the victim possibly might not be consenting there is no consent: Zorad [1979] 2 NSWLR 764, Hemsley (1988) 36 A Crim R 334. The test is an entirely subjective one: O'Meagher (1997) 101 A Crim R 196. Where the accused does not consider the issue of consent at all, there is also no consent: Kitchener (1993) 29 NSWLR 696, Tolmie (1995) 84 A Crim R 293.

The maximum penalty is normally 14 years. For offences committed after 3 February 2003, the 'standard non-parole period' is 7 years.
 
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erawamai

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discex said:
I hate you.
You mean you wouldn't be calling for 80 years in gaol if you were accused of sexual assault? And the Crown managed to prove that you knew that is was possible (not probable. To prove possible is not hard. All they have to prove is that the women was under you to show that it is possible that she was not consenting) that the women was not consenting.

This doesn't mean that Skaff and co should get off. They were proven guilty. Their sentences were quite substantial and still are. The court in the interests of providing equity and CONSISTENCY in the law reduced their sentences so as they would be consistent with similar cases. Whether you believe it or not the punishment is meant to relfect the gravity of the crime. The most serious cases are those which get the max penality. If this was not the case and all sexual assaults were considered the worst possible and max penalties were handed out all the time it would leave the court with no discretion when there is a situation which a person does not deserve to go to gaol for the max because of various circumstances.

...and you are right. If it was someone I knew that was sexually assaulted I would be calling for the highest penalty. In some cases I do think the legal system forgets about victims rights. In many ways, if you were in the know, The current CJ of the NSWSC has moved to have this changed by introducing sentencing guidelines and strengthening head sentences.

But you have to put yourself in the shoes of the accused too. It is just as much an unjustice if a person is unduely punished or found guilty when he or she is not. If you were accused wrogfully you would not be calling for 80 year penalties. If you were found guilty of a crime you felt you were not culpable for you would not be calling for massive sentences.

There is a difficult balancing of rights.
 
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MoonlightSonata

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erawamai said:
You mean you wouldn't be calling for 80 years in gaol if you were accused of sexual assault? And the Crown managed to prove that you knew that is was possible (not probable. To prove possible is not hard. All they have to prove is that the women was under you to show that it is possible that she was not consenting) that the women was not consenting.
Exactly. Although it has to be a "real possibility": R v Banditt [2004] NSWCCA 208 - at 92, per James J:
I would accept that, in order for an accused person to be liable on the basis of advertent recklessness, the possibility that the complainant is not consenting, of which the accused is aware, must be more than merely a bare possibility. In other areas of the criminal law where criminal liability depends on awareness or contemplation by an accused person of a possibility, it has been held that the possibility must have a certain degree of likelihood. See for example Miller v The Queen (1981) 55 ALJR 23 relating to the doctrine of common purpose and the recent decision of the Court of Criminal Appeal in R v Lavender [2004] NSWCCA 120 relating to manslaughter by criminal negligence, for example at (253) per Hulme J. However, if an accused person is aware of a real possibility that the complainant does not consent to sexual intercourse, he acts recklessly if, having that knowledge, he decides to proceed to have sexual intercourse, even if he considers it probable (although ex hypothesi not certain) that the complainant does consent to sexual intercourse. In the kind of extreme case postulated by counsel for the appellant, in which an accused believes that it is overwhelmingly probable that the complainant is consenting but is aware that there is a slight possibility, say a 1 per cent chance, that she is not consenting, then the possibility should be disregarded as being merely a bare possibility and not a real possibility.
Banditt is on appeal to the HC at the moment, so I don't know whether they will clarify what "real possibility" means. Describing it is always going to be a problem but I would not like to see a "far-fetched and fanciful" definition. My guess is though they'll keep it relatively easy to satisfy.

Thanks for making me do some crim revision :p
 

erawamai

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MoonlightSonata said:
Although it has to be a "real possibility": R v Banditt [2004] NSWCCA 208 - at 92, per James J:Banditt is on appeal to the HC at the moment, so I don't know whether they will clarify what "real possibility" means. Describing it is always going to be a problem but I would not like to see a "far-fetched and fanciful" definition. My guess is though they'll keep it relatively easy to satisfy.
I think the mens groups will be happy and the womens groups might be a bit sad. There are womens groups out there who think that the test should not be subjective at all due to the harm is causes. But golden thread etc etc canot be guilty of a serious crime if you didn't mean to do it.

They never examine sexual assault in the crim exams. They really should.

Thanks for making me do some crim revision :p
You should be revising property ;)
 

MoonlightSonata

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erawamai said:
I think the mens groups will be happy and the womens groups might be a bit sad. There are womens groups out there who think that the test should not be subjective at all due to the harm is causes. But golden thread etc etc canot be guilty of a serious crime if you didn't mean to do it.
Then there are also those wacko extremists like Catherine McKinnon saying women can never consent to sex because of our patriarchal society!
erawamai said:
You should be revising property ;)
I have a Mabo essay due on Thursday and Crim essay due on Friday :(
 

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