Al Dhaifa v R

1. [1]

   GARLING J: The applicant, to whom the Court has given the pseudonym Mohamed Al Dhaifa to prevent identification of his victims, seeks leave to appeal against the sentence imposed upon him by Zahra SC DCJ on 16 October 2020.

2. [2]

   The applicant was sentenced to an aggregate term of imprisonment of 25 years with a non-parole period of 18 years. There were 18 offences against five children involving various different sexual offences which can be summarised as follows:

   1. (1)

      Victim TS: TS was the applicant’s nephew. Offences against TS took place between 1995 and 2005 when TS was aged between 5 to 14 years old. The offences were aggravated indecent assault of child under 10 years (Counts 1, 2), aggravated sexual assault of person under 16 years (Counts 3, 4), aggravated indecent assault of child under 16 years (Counts 5, 6).

   2. (2)

      Victim WS: WS was the applicant’s nephew. Offences against WS took place between 1999 and 2004 when WS was aged between 10 to 15 years old. The offences were aggravated sexual assault of person under 16 years (Counts 7, 8, 11, 12, 13), aggravated act of indecency of person under 16 years and under authority (Count 9), attempted aggravated sexual assault of person under 16 years (Count 10).

   3. (3)

      Victim AS: AS was the applicant’s nephew by marriage. Offences against AS took place between 2002 and 2004 when AS was aged between 12 to 15 years old. The offences were aggravated sexual assault of person under 16 years (Count 14) and attempted aggravated sexual assault of person under 16 years (Count 15).

   4. (4)

      Victim AT: AT was a friend of WS and TS. Offences against AT took place between 2006 and 2009 when AT was aged between 12 to 14 years old. The offences were aggravated indecent assault of person under 16 years (Counts 16, 17).

   5. (5)

      Victim MA: MA was the applicant’s son. A single offence against MA took place in 2019 when MA was 17 years old. The offence was aggravated sexual touching (under authority) (Count 18).

3. [3]

   The details of the charges and the indicative sentences announced by Zahra SC DCJ are as follows:

4. [4]

   The applicant received a 25% discount for his early pleas of guilty, which was applied by the Judge to the indicative sentence.

5. [5]

   The aggregate sentence imposed by the Judge was fixed to commence on 20 September 2019, which was the date the applicant was arrested. He had remained in custody since his arrest.

6. [6]

   On 7 December 2023, the applicant lodged an Application for Leave to File a Notice of Appeal After Expiry of the Filing Period.

Grounds of Appeal

1. [7]

   The applicant relied on 15 Grounds of Appeal. They were:

Asserted Errors in the Sentencing

1. [8]

   As can be observed, there is a considerable degree of repetition in each of the grounds of appeal for each of the counts. For convenience, the following summary consolidates these grounds, and relates them to each victim.

Remarks on Sentence

1. [9]

   The Judge recorded the following background about the applicant:

2. [10]

   The Judge then recounted the facts as to what occurred, which were drawn from the Agreed Set of Facts.

3. [11]

   In each of those facts, the Judge recorded the age of the victim and the principal criminal offence together with the surrounding circumstances.

4. [12]

   The Judge recorded that when the applicant was arrested, and following his caution by the Police, the applicant denied the allegations and “… blamed his sister, the mother of the victims WS and TS, for causing trouble and this problem”.

5. [13]

   With respect to the subjective case of the applicant, the Judge recorded this:

6. [14]

   His Honour noted part of the psychologist’s expert report which included this history:

7. [15]

   His Honour went on to assess the objective seriousness of the offending. In this respect, he made a series of general remarks that were intended, so it seems, to be applied when considering the seriousness of individual counts.

8. [16]

   His Honour had regard to the maximum penalty for each of the crimes for which the sentences were being considered. He noted that general deterrence was of great importance – particularly where the victims of predatory sexual assault were young children. He said that general deterrence was particularly important when an offender was in a position of trust in relation to the victim.

9. [17]

   He said this:

10. [18]

    His Honour went on to address the offending in general, saying this:

11. [19]

    His Honour noted the complexity of assessing, on a scale, the objective seriousness of each of the offences and went on to say:

12. [20]

    He considered the circumstances of the offending generally. The Judge said this:

13. [21]

    His Honour then went on to assess the objective seriousness of each of the offences. In so doing, from time to time, his Honour recorded the age of the victim. As a matter of course his Honour recorded briefly the facts relating to the count and the age of the victim and then any specific aggravating factor. By way of example, with Count 1, which was an offence of aggravated indecent assault on a child under 10 years, the Judge noted that TS was between 7 and 8 years of age at the time. He noted that the victim was very frightened as a result of the offence and by his attempt to report it and, as a consequence, did not disclose any other acts of the applicant. The Judge concluded that the applicant abused a position of trust or authority, and then assessed where the offence fell in the range of objective seriousness. From time to time, his Honour noted that the offending could not be considered to be isolated.

14. [22]

    With respect to Count 4, which was an offence of aggravated sexual assault upon TS who was a person under 16 years of age. His Honour noted that TS was 13 years old at the time. He provided an overview of the salient facts. But he specifically drew attention, when expressing his conclusion about objective seriousness, to the significant violence involved, the course of conduct which included a continuous series of sexual acts upon TS, and the effect of the violent conduct upon TS during the commission of the offences. He also noted that TS was under the authority of the applicant. This was not an element of the offence.

15. [23]

    His Honour continued to describe each of the counts and, where appropriate, noted individual aggravating factors. His Honour also noted the need for caution with respect to not double-counting aggravating factors. It seems that where age played a particular role in each offence, his Honour pointed to it.

16. [24]

    By way of example of this approach, in Count 8, where the age limit was 16 and the victim was 10 to 12 years old at the time of the offence, his Honour specifically noted that the offending was objectively serious “as the victim was 10 to 12 years old at the time and was under the authority of the offender”.

17. [25]

    His Honour expressed some conclusions about the objective gravity of the offending overall. He said:

18. [26]

    His Honour noted the importance of general deterrence and denunciation so that the sentence imposed must also reflect “… a significant component of specific deterrence”. That was because his Honour concluded that the applicant had “… little insight, little appreciation of the substantial impact of his conduct upon the victims”.

19. [27]

    His Honour considered whether the cognitive functioning of the applicant at the time of offending was in any way impaired. He concluded that it was not.

20. [28]

    His Honour expressed some further conclusions with respect to the objective seriousness of the offences in the following terms:

21. [29]

    His Honour was not persuaded that the applicant had shown any genuine remorse for the offending, however, because his Honour concluded that the applicant would require considerable treatment by way of rehabilitation in the community, he found special circumstances. He was unable to make any meaningful prediction about the applicant’s prospects of rehabilitation.

22. [30]

    His Honour also addressed the other principles of sentencing about which no complaint is made.

23. [31]

    When deciding to impose an aggregate sentence, his Honour made these general remarks:

24. [32]

    His Honour allowed a 25% discount for the utilitarian benefit of the applicant’s early pleas of guilty by reference to the indicative sentences. He noted that any aggregate sentence which he imposed would be back-dated to the date the applicant was arrested and taken into custody.

25. [33]

    His Honour, at the conclusion of his Remarks on Sentence, imposed an aggregate sentence of 25 years with a non-parole period of 18 years.

Submissions by the Applicant to the Judge

1. [34]

   Before considering the grounds of appeal, it is useful to record salient parts of the defence submissions made to the Judge by the applicant. Counsel for the applicant, before the Judge, accepted that the objective seriousness of an offence depended on all of the circumstances which, relevantly, included the age disparity between the child and the offender, and the age of the child. He also noted the presence of aggravating factors, in particular offences which increased the objective seriousness.

2. [35]

   Counsel accepted that with the exception of the victim AT, all of the other offences could not be regarded as isolated offences. He also conceded with respect to WS, TS, AS and MA, that the victims were under the authority of the applicant and that the applicant abused the position of trust or authority in relation to them.

3. [36]

   He also made this submission about the vulnerability of victims:

4. [37]

   Counsel also accepted that the applicant would be sentenced “… to a lengthy total term” but submitted that special circumstances should be found.

Submissions of Applicant on Appeal

1. [38]

   In respect of a number of Counts, the applicant submitted that error occurred in the Judge’s reasons because he found that “age aggravated the offence under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999”.

2. [39]

   For example, with respect to Count 1, it was submitted that because the victim was between 7 and 8 years old, and the offence involved the aggravated indecent assault of a child under 10 years, the age difference between the statutory age and the age of the victim, was not so significant as would constitute the victim as being “very young” and therefore amounting to vulnerability as an aggravating factor. He submitted that this approach had the effect of punishing the applicant a second time for the age of the victim.

3. [40]

   With respect to Count 2, the submissions contended that age had been taken into account as an aggravating factor in a number of different ways: firstly, as an element of the offence; second, as going to the vulnerability of the victim; third, going to vulnerability in that the victim and the applicant lived in the same household; and fourth, as part of the facts amounting to an abuse of a position of trust or authority. It was submitted that the applicant had been inappropriately punished by having the age of the victim counted as part of a number of aggravating factors.

4. [41]

   It is unnecessary to repeat all of the submissions made with respect to each offence, however, the thrust of the submissions was that age had been double‑counted, and that facts that had been used to support conclusions with respect to aggravating factors were taken into account separately either as matters of aggravation or, alternatively, as contributing to matters of aggravation.

5. [42]

   It was also contended from time to time, with respect to different counts, that there was an error in the sentencing Judge’s reasons because he failed to give adequate reasons for finding aggravation.

6. [43]

   The submissions concluded on the issues as to objective seriousness, saying this:

7. [44]

   The following submission was also made:

8. [45]

   It was contended that the errors infected the fixing of the aggregate head sentence, because the relevant findings of objective seriousness were erroneous, and as a consequence, so were the indicative sentences announced by the Judge.

9. [46]

   In oral submissions during the appeal, Counsel for the applicant sought to encapsulate his arguments on appeal. He said this:

10. [47]

    By reference to various Counts, the assessment of objective seriousness and the indicative sentences of the Judge (which were each reduced by 25% on account of the discount for early plea), Counsel for the applicant submitted that there was a disconformity between the assessments of objective seriousness and the sentences indicated. He submitted that in a number of cases, those indicative sentences were too high. He submitted that, having regard to that proposition, clearly the Judge must have taken into account and double-counted age and vulnerability as factors contributing to the sentence.

11. [48]

    He also submitted that the excessive indicative sentences had the result that the aggregate sentence must have been inappropriately increased.

Submissions of the Crown

1. [49]

   The Crown submitted that there was no error to be found in the Remarks on Sentence of the sentencing Judge, the indicative sentences or the aggregate sentence.

2. [50]

   The Crown submitted that the reasons of the Judge were clear. Some general remarks had been made which were applicable broadly, and then when the facts were described with respect to each individual count where there was a specific issue of aggravation that was taken into account by his Honour. Otherwise, there was no specific issue of aggravation for that count in addition to those matters of aggravation which were discussed generally.

3. [51]

   In particular, the Crown pointed to the concessions made by Counsel for the applicant who appeared before the Judge (but not on the appeal). The Crown submitted that the Judge acted in accordance with those concessions, which was an entirely correct approach, and there was no reason for this Court to take any different path.

4. [52]

   Ultimately, the Crown submitted that if patent error was identified (which it did not accept) this Court would not sentence the applicant to any lesser sentence having regard to the period of time over which the conduct occurred, the seriousness of the conduct and its totality.

Discernment

1. [53]

   I am wholly unpersuaded that the applicant has demonstrated any error in the Remarks on Sentence of the Judge, in the indicative sentences which have been identified or the aggregate sentence which was imposed.

2. [54]

   The Judge was presented with a most complex sentencing task. There were 18 counts of offences involving five different victims, whose ages ranged both between the victims and within the group of charges against the same victims.

3. [55]

   Although the Facts were agreed, it was necessary for his Honour to identify, with respect to each Count, the context and the particular facts. This he did. Having done so, his Honour paid attention to the applicant’s account of the offending and then moved to assess the objective seriousness of the offending.

4. [56]

   The errors which are relied upon for the purposes of the appeal relate to the Judge’s assessment of the objective seriousness of the individual offences.

5. [57]

   As this Court has said on many occasions, the assessment of the objective seriousness of an offence is classically or quintessentially within the role of the sentencing Judge in finding facts and drawing inferences from those facts. The assessment of objective seriousness is an evaluative exercise which requires an assessment of a range of factors which may be susceptible to significantly differing views: Magro v R [2020] NSWCCA 25 at [29] per Gleeson JA (Button and Hulme JJ agreeing); Mulato v R [2006] NSWCCA 282 at [37], [46].

6. [58]

   The task for an applicant who seeks to demonstrate error in this evaluative exercise can be a most difficult one, because before this Court can interfere with the assessment made by the sentencing Judge, error must be demonstrated in accordance with the principles in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40; Attorney-General for NSW v DSF Constructions Pty Ltd [2019] NSWCCA 33 at [67] per Beazley P, at [119] per Fullerton J.

7. [59]

   The question on appeal is whether or not the particular characterisation which the sentencing Judge gave to the circumstances of the offence was open to the Judge to make: Mulato at [37], [46]-[47]; Magro at [31]; DSF Constructions at [67], [119].

8. [60]

   His Honour carefully identified the general features of objective seriousness of the offending with which he was concerned. This necessarily involved considering any aggravating factors set out in s 21A of the Crimes (Sentencing Procedure) Act 1999, and as well, any other factors related to the objective seriousness of the offence. Any such matters arose out of the Agreed Facts.

9. [61]

   His Honour needed to consider in particular two of the sub‑sections of s 21A(2) being (k) and (l). They are in the following form:

10. [62]

    The first of these two sub-sections invite a sentencing Court to identify whether the offender was in a position of trust with respect to the victim, or a position of authority with respect to the victim. This is determined by addressing any indicia of the position of the offender vis-à-vis the victim. These may include, but are not limited to, whether the victim lived in the same house as the offender, whether the offender was a parent, step‑parent, or otherwise in loco parentis, the age differential between the offender and the victim, whether the offender held a position of authority – such as a schoolteacher or police officer, which could affect how a victim perceived them.

11. [63]

    It is relevant to keep in mind that abuse of trust and abuse of authority are separate and distinct: see MRW v R [2011] NSWCCA 260 at [77]; PC v R [2022] NSWCCA 107; (2022) 108 NSWLR 181 at [73], [76]-[77].

12. [64]

    The second factor, namely the vulnerability of a victim, can arise because of the age of a victim, or other factors including those nominated in the section.

13. [65]

    On this appeal, the applicant accepted that even though each of the offences, except Count 18, contained, as an element, that the victim was below a particular age, namely 16 years for all counts except Counts 1 and 2 where the age was 10 years, that the Judge was nevertheless entitled to have regard to the actual age of the victim at the time of the offence: Shannon v R [2006] NSWCCA 39 at [28], Howie J (with whom Mason P and Barr J agreed).

14. [66]

    A careful review of the Judge’s Remarks does not show, when he considered the individual Counts for the purpose of assessing the objective seriousness of the offences, that there was any double-counting involving the age of the victim at the time.

15. [67]

    It is clear that the age of the victims at the time of each offence, was a factor which contributed to the existence of aggravating features of the kind described in [61] above. As well, it was a fact which was relevant to the proof of the offence. As earlier indicated, the victim of the offence had to be below the relevant specified age. However, the fact that the age of a victim may be relevant to more than one element of aggravation does not mean that, of itself and without more, a sentencing Judge has double-counted features of aggravation, with the consequence that a manifestly excessive sentence has been imposed.

16. [68]

    A sentencing Judge needs to be astute not to include as an aggravating feature of an offence when assessing the objective seriousness of that offence, any matter which is an essential element of the offence. By way of example, if a person offended against s 192(G) of the Crimes Act 1900 by dishonestly making a statement that was false or misleading in a material particular, with the intention of obtaining a financial advantage, then the sentencing Judge would be double-counting if, as an aggravating feature, that Judge was to include reference to s 21A(2)(o), namely that the offence was committed for financial gain.

17. [69]

    But here, the circumstances are very different. The aggravating features where there is an abuse of a position of trust or authority, and where a victim was vulnerable, are separate aggravating features. Part of the factual basis for those aggravating features was the same fact, namely the age of the victim at the time. However, both aggravating features were made out by reference to other matters as well as the age of the victim. No double‑counting is involved in the way in which the Judge approached the sentence by determining that such aggravating features existed.

18. [70]

    It was conceded at trial and on appeal that notwithstanding that a victim was under the specified statutory age for the particular offence, the age of the victim was nevertheless relevant as a consideration in assessing the objective seriousness of the offence.

19. [71]

    Having carefully attended to the assessments by the sentencing Judge of the objective seriousness, and then the indicative sentences imposed, there is no basis for concluding that the sentencing Judge imposed excessive indicative sentences because there had been a double-counting of any feature.

20. [72]

    The assessment of the objective seriousness with respect to each of the offences by the Judge was well within the bounds of his discretion, as were the indicative sentences announced with respect to each offence.

21. [73]

    The applicant also submitted that the Judge’s Reasons had been inadequate.

22. [74]

    The Reasons were necessarily lengthy and complex. The Judge made, in his Remarks on Sentence, reasons addressing the overall position of the offending, the general facts and circumstances and then, by reference to each offence, the particular features which contributed to the assessment of objective seriousness.

23. [75]

    The Reasons were in this case, and in all of the circumstances, more than adequate to expose the Judge’s thinking about and his conclusions on sentence.

Manifest Excess

1. [76]

   The principles by which this Court, on appeal, addresses a ground of manifest excess of sentence are well known and need not be repeated here. It is sufficient to note that the applicant needs to persuade this Court that the sentence imposed “is unreasonable or plainly unjust” such that this Court “may infer that in some way there has been a failure properly to exercise the discretion as the law reposes in the court at first instance”: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.

2. [77]

   Appellate intervention is only warranted where this Court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. This is, by its very nature, a conclusion that does not admit of lengthy exposition: see Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [59].

3. [78]

   The sentence in question on this ground, is the aggregate sentence which was imposed by the Judge of 25 years with a non-parole period of 18 years.

4. [79]

   In assessing whether or not the sentence was manifestly excessive, it is necessary to keep the principal features of the course of the applicant’s offending in clear perspective. He offended against five separate victims. His course of conduct occupied 24 years. The maximum sentence for offences against s 61J(1) of the Crimes Act of aggravated sexual assault for a person under 16 years of age, was 20 years. The applicant pleaded guilty to 10 such offences although one was constituted by an attempt to commit that offence. The same maximum sentence applied.

5. [80]

   His Honour noted that the applicant exploited his victims for his own sexual gratification, knowing that he was causing, on occasions, physical discomfort to the victims and that his conduct would have had serious emotional consequences upon them. His Honour, correctly, noted that the sentence which was to be imposed needed to reflect a strong element of general deterrence, and specific deterrence, and denunciation of the applicant’s sexual abuse of the children. His Honour also held, correctly, that any sentence had to recognise the harm caused by the applicant to the victims. His Honour was not persuaded that the applicant had shown any genuine remorse for his offence, nor that he could make any meaningful prediction about the applicant’s prospects of rehabilitation.

6. [81]

   In light of the findings of the Judge, the large number of offences, the seriousness of each of the offences, the need for general and specific deterrence and the denunciation of the offending, and in the absence of any determination of prospects of rehabilitation, the aggregate sentence could not be regarded as being in any way excessive.

7. [82]

   That conclusion is supported by the degree of concurrence which the aggregate sentence represents having regard to each of the indicative sentences announced by the Judge.

8. [83]

   Whilst I accept that the sentence is a lengthy one, having regard to the seriousness of the conduct, and the other features to which I have referred, it is simply not possible to conclude that the sentence was manifestly excessive.

9. [84]

   I propose the following orders:

   1. (1)

      Grant leave to appeal to the applicant.

   2. (2)

      Appeal dismissed.

10. [85]

    McNaughton J: I agree with Garling J.

11. [86]

    Weinstein J: I agree with Garling J.