Irmak v R; Dagdanasar v R

1. [1]

   THE COURT: Between 29 October 2018 and 3 December 2018 the applicants, Ali Irmak and Ruhi Dagdanasar, stood trial charged on an indictment containing 10 counts contrary to s 61JA(1) of the Crimes Act 1900 (NSW), in the following terms:

2. [2]

   Both men entered pleas of not guilty to each of the 10 charges. The Crown relied upon the statutory alternative to s 61JA(1), provided at the time by s 61Q(1A) (and now by s 80AB(1A)) of the Crimes Act with respect to each of the 10 counts, being charges of aggravated sexual assault (without the element of reckless infliction of actual bodily harm), contrary to s 61J(1) of the same Act. At the completion of the trial the jury returned verdicts as follows:

   1. (1)

      guilty to count 2 as charged;

   2. (2)

      guilty to the statutory alternative, being a charge contrary to s 61J(1) of the same Act, to counts 1, 3, 8, 9, and 10; and

   3. (3)

      not guilty to counts 4, 5, 6, and 7.

3. [3]

   Later, on 19 July 2019, his Honour Judge ML Williams SC sentenced the applicant Irmak to an aggregate sentence of 26 years imprisonment; whilst an aggregate sentence of 24 years was imposed upon the applicant Dagdanasar.

4. [4]

   Both applicants now seek leave to appeal against both conviction and sentence.

5. [5]

   The applications for leave to appeal against conviction filed by the applicants each raise questions of law, and questions of mixed law and fact. To the extent that the latter applies, leave to advance the relevant grounds is required: s 5(1)(a) and (b) of the Criminal Appeal Act 1912 (NSW).

6. [6]

   The applicant Irmak raises the following complaints:

7. [7]

   The applicant Dagdanasar raises the following complaints:

   1. (1)

      The verdict in respect of count 1 is unreasonable;

   2. (2)

      The verdict in respect of count 2 is unreasonable;

   3. (3)

      The verdict in respect of count 3 is unreasonable;

   4. (4)

      The verdict in respect of count 8 is unreasonable;

   5. (5)

      A miscarriage of justice was occasioned in respect of the trial of count 8 arising from the failure on the part of the trial judge to give a direction in respect of the use that could properly be made of uncharged acts; and

   6. (6)

      A miscarriage of justice was occasioned by the admission of supposed expert opinion and the deployment of it by the Crown Prosecutor in closing address. [At the hearing of the application counsel for Dagdanasar relied only upon that part of the ground that deals with the use made of the evidence by the Crown Prosecutor.]

8. [8]

   Although there is a degree of commonality in the grounds raised by both applicants, they do not entirely correspond, and will be dealt with separately.

9. [9]

   It is necessary to set out the evidence led at trial in some detail to understand and address the applicants’ complaints.

The Evidence at Trial

1. [10]

   By way of very broad overview, the Crown’s case at trial was that the applicants and another man, Mustafa Yasser-Basoglu (with a variant spelling of Yucebasoglu also used in the material before this Court), acting together in a joint criminal enterprise, sexually assaulted the complainant when in company with each other, occasioning actual bodily harm (“ABH”) to her. Mustafa Yasser-Basoglu did not stand trial as he fled to Turkey and had not been arrested: R v AI; R v Dagdanasar [2019] NSWDC 370 at [1]. As is evident from the averment of the charges on the indictment, the Crown relied upon the reckless infliction of ABH “immediately before, at the time of, or immediately after the sexual intercourse”. During the course of the Crown’s opening address to the jury there was no further particularisation of the nature of the injury relied upon relevant to each count, or of precisely when injury was occasioned.

2. [11]

   The most significant witness was the complainant, Ms A. She gave evidence over five days.

3. [12]

   In 2016 Ms A was a high school student in year 12; she had her 18th birthday about two weeks before these events. On 8 November 2016 Ms A was to attend her school’s year 12 formal. She dressed for the event in a floor-length halter-neck dress, high-heeled shoes, black underpants, and adhesive nipple covers. Double-sided adhesive tape was used to secure her dress at the front halter neckline.

4. [13]

   Prior to attending the formal, the complainant attended an end of school celebration with her mother and sister at a friend’s house. She arrived at the gathering at about 4pm on 8 November 2016 and stayed for an hour or two. There were a large number of guests. Ms A, who had been prescribed an anti-depressant medication a couple of months previously, felt very anxious at the event, and she drank six glasses of champagne to help manage her anxiety.

5. [14]

   When Ms A left the pre-formal celebration she felt “quite drunk” and was a “bit clumsy and dropping things”. Her mother drove her to the formal venue at Marsfield, and dropped her there.

6. [15]

   At the formal, the complainant ate only a small amount of food; she was too anxious to eat the main meal that was served, having only some dessert. She did not recall if she drank any alcohol. She left the formal at about 11pm feeling:

7. [16]

   She agreed in cross-examination that she had drunk alcohol before 9 November 2016, including vodka, and had been intoxicated by alcohol on earlier occasions.

8. [17]

   An “after-party” had been organised by one of Ms A’s classmates, to be held at a residence in Auburn. A mini-bus had been arranged to take after-party guests to Auburn, and the complainant joined the bus to Auburn. There were about 60 guests there, mainly students from the complainant’s school.

9. [18]

   Whilst at the after party, the complainant did not eat any food but did drink "two or three decent sized gulps” of unmixed vodka, and a mixed drink of ginger beer and vodka.

10. [19]

    At the end of the night, the guests were ushered from the Auburn residence. Ms A had little memory of leaving but did not believe she was with anyone when she left. She told the jury she recalled the foyer of the apartment building where the party had been held, with her next memory being of sitting alone in a gutter in the street, sending messages on her phone in an attempt to get help to get home. She felt very drunk.

11. [20]

    The complainant said that she was struggling to send her location to friends with her mobile phone, and recalled calling and sending messages to friends using Facebook and other services in an attempt to arrange transport home. The call log of the complainant’s phone that was in evidence as Ex. C showed numerous communications after about 1:30am on 9 November 2016 in which the complainant asked, or appeared to ask, for help. Some of the messages were incomprehensible; others “failed”, or had no content. The following communications, extracted from Ex. C and rendered exactly, give the flavour of those messages that had content:

12. [21]

    As she sat in the gutter, Ms A said that a dark car with a male inside [Mustafa Yasser-Basoglu] pulled up near her, and then she found herself in the passenger seat. She had no recollection of moving from the street to the car. The complainant recalled the car being parked, her dress being pulled up, being in the front passenger, or the back seat of the vehicle, and the male having non-consensual penile-vaginal intercourse with her.

13. [22]

    Ms A said that her next memory was of walking into a two-storey house with the male. In cross-examination the complainant said that she had her phone with her, and perhaps her handbag. Inside the house there were two other men sitting on a couch smoking and “doing drugs”. Both men were much older than the complainant. The complainant described one [Dagdanasar], who was chubby, with thin grey hair, as older than both the other male and the male from the car (whom she thought to be in their late thirties). The second man sitting on the couch had a large tattoo, “No Fear”, in sizeable dark font across his throat [Irmak]. The men were smoking from a glass pipe with “white stuff” in it. At some point soon after her arrival at the house Ms A saw a woman there, but she did not speak to the woman, who left shortly after.

14. [23]

    Although the complainant could not say precisely when in the course of these events she had access to her phone, at 4:35:41 on 9 December 2016 the complainant sent a message to a friend:

15. [24]

    One of the three males got Ms A a drink and the three were “egging [her] on to skull it”. She felt scared and anxious and did what she was urged to do. Ms A’s next memory was of the male from the car slapping her, causing pain, and touching her breasts and bottom. He ripped the adhesive tape that Ms A had used to secure her formal gown from her breasts, causing pain. He blew smoke from the pipe he had been smoking into her face. All three of the men at different times referred to the substance in the pipe as “crack” and “heroin”.

16. [25]

    Dagdanasar lifted the pipe to Ms A’s mouth, inserting it in her mouth, and lit it; she inhaled. The smoke burned her throat and caused her to feel “dizzy and spaced out”. Shortly after, the man with the “No Fear” neck tattoo, Irmak, who was sitting opposite Ms A at that point; told her to come to him. She felt very “out of it” and crawled across to him. He then manoeuvred her body into a position and roughly inserted his penis into her vagina [count 1]. Ms A was so intoxicated she could not move. Removing his penis from Ms A’s vagina, the applicant Irmak next inserted it into her anus [count 2], causing Ms A discomfort. She consented to neither act.

17. [26]

    Ms A found it difficult to move her body, and she had no recollection of speaking. She was not able to lift her head. She recalled the oldest man said that she was “drooling”.

18. [27]

    The pipe was repeatedly put into Ms A’s mouth and she inhaled the smoke. Although Ms A could not recall which of the males administered the pipe to her at the various times it was given to her, all three men were together at these times. Each of them made comments along the lines of “this makes you horny”, and “we’re horny”.

19. [28]

    After some time had passed, of which the complainant had no recollection, Yasser-Basoglu put his penis into the complainant’s mouth [count 3]. Nothing was said. He was rough and Ms A found it difficult to breathe. The male was thrusting himself into her mouth and Ms A could not move her head. He then took her away from the other two men to an upstairs bathroom, telling her “Let’s go clean your dirty [a word meaning vagina]”.

20. [29]

    Yasser-Basoglu put Ms A into the shower, pulling her dress off her. She had no underpants on, but had no recollection of when or how they had been removed. The male watched Ms A in the shower, making comments about her body, and kissing her on the mouth. He got her a towel which Ms A wrapped around herself. Her next memory was of being in a bedroom in the upper storey of the house, on her knees on the floor. The bedroom had no furniture other than a built-in wardrobe with mirrored sliding doors. As she knelt on the floor, Yasser-Basoglu put his penis into Ms A’s mouth [count 4]. He put his hands around her head and moved her head, forcing her mouth back and forwards on his penis. He was rough and Ms A was gagging.

21. [30]

    The complainant told the jury that she next remembered seeing herself and the man naked in the wardrobe mirror and the man’s penis in her vagina [count 5]. Ms A said:

22. [31]

    She continued:

23. [32]

    She recalled “pleading with him to put a condom on”.

24. [33]

    Count 6 was the next act the complainant recalled:

25. [34]

    The man got angry with her, took up his clothes and walked away.

26. [35]

    Ms A felt affected by the drugs she had been given. She was “spaced out and dizzy… and not in control of [her] body”. She was unable to sit upright. She felt as if the men had power over her.

27. [36]

    The complainant was unsure of how long she was alone in the upstairs bedroom. She had no idea of the passing of time. At some point she returned to the bathroom to look for her clothes. She found her underpants but could not find her dress. She went downstairs and into the same lounge room she had earlier been in, where she was handed a blue jacket. All three men were present at the time. Ms A put the jacket on.

28. [37]

    Her next memory is of sitting on a lounge. The oldest man, [Dagdanasar] who was on her left, unzipped her jacket and reached in to “grab” Ms A’s breasts. The man from the car was sitting to her right; he “reached over and bit [her] right nipple”.

29. [38]

    Dagdanasar took off her underwear and put his penis in her mouth [not the subject of a charge]. At this point, he was naked and standing over Ms A as she lay on the couch. His penis was soft when he initially put it into her mouth and as he “thrust it in and out… it got hard”. The complainant found it difficult to breathe. The complainant's next memory is of her legs being positioned over the oldest man and his penis entering her vagina [count 8]. She could not clearly remember how long this lasted or if anyone else was in the room. She said:

30. [39]

    Although the complainant did not have any sense of the ordinary progression of time, and could not say how much time passed, her next memory was of the oldest man [Dagdanasar], naked and standing over her, putting his penis forcefully into her mouth and thrusting himself in and out of Ms A’s mouth as she struggled to breathe. His penis caught the complainant’s tongue and she felt the frenulum under her tongue rip [count 7]. It was painful and she made a noise; “because his penis was in [her] mouth, it was kind of muffled”. Dagdanasar continued to roughly thrust his penis into her mouth. Eventually the complainant was able to push him off her, and the act ceased. Ms A thought she recalled there being other people in the room at the time but was not sure how many people, or who they were. She was able to say, however, that, after the earlier departure of the woman, there was no-one in the house other than the three men.

31. [40]

    Time passed, although the complainant was unable to quantify it. Her next memory was of the man from the car [Yasser-Basoglu] and the man with the ‘No Fear’ neck tattoo [Irmak] “taking it in turns” to have intercourse with her:

32. [41]

    Count 9 reflects an act of penile-vaginal penetration by Yasser-Basoglu; Count 10 reflects the same act by Irmak.

33. [42]

    The complainant did not recall if anything was said by the men or herself, or how long the sexual intercourse lasted. After it ended Irmak said, "You've had anal three times. You - you love it."

34. [43]

    The footage that was recorded by Dagdanasar was in evidence before the jury as Ex. F. In cross-examination, counsel for Irmak showed the recordings to Ms A. She protested, said she did not want to watch it, and was heard to say, as the recording was played, “Stop, stop. I can’t do it”. The trial judge noted for the record that Ms A turned her head away from the screen, covered her face and then her ears with her hands, and appeared distressed.

35. [44]

    At one point, after the acts the subject of the recording, she reached out to touch Yasser-Basoglu’s wallet; Irmak and Dagdanasar “freaked out” and became angry, telling her not to touch other people’s stuff. Ms A had asked for the names of the men from time to time, but the names each gave her changed constantly. When the complainant spoke to the men, the conversations were all in English, whilst the conversations between the men were not always in English. The men claimed they were speaking Portuguese.

36. [45]

    Irmak called out in a foreign language to Yasser-Basoglu, who was upstairs at that point. Ms A told the jury:

37. [46]

    The complainant remembered being at a sink, and thought that she may have been in the shower. She recalled wearing a grey hoodie and pastel coloured shorts, these being the clothes she had on when she left the house.

38. [47]

    After a time, the complainant knew that she was alone with the oldest man [Dagdanasar]. Although she did not see Yasser-Basoglu or Irmak leave, she came to realise they had gone. As she began to sober up from the alcohol and other substances Ms A began to feel anxious about where she was and what she was doing. She recalled having her mobile phone and using it to send a message to her sister [using SnapChat, and not caught on Ex. C] to the effect that she had been raped, was still there, and needed to leave. It was light at the time, but the complainant did not know what the time was when she sent the message. Her sister responded asking if she could telephone Ms A, but the complainant told her no:

39. [48]

    She thought that she may have sent her location to her sister.

40. [49]

    The complainant tried to leave but was unable to open the front door. She became more anxious.

41. [50]

    Dagdanasar received a call on his phone and held the phone to the complainant’s ear. He told the complainant it was the man with the “tatt on his neck”. Whilst the phone was held to the complainant’s ear, the man with the tattoo said:

42. [51]

    She asked the oldest man about the videos that she had seen him take during the evening, but he pretended not to know what she was talking about.

43. [52]

    The complainant received a message from her sister saying that she was close, and decided it was safe to tell the oldest man she was leaving with her sister. The oldest man appeared “confused… and sceptical” and asked how the complainant’s sister knew where the complainant was. Ms A tried to “play it cool”, but told the jury that she was feeling "really scared" at the time.

44. [53]

    Ms A tried again to open the front door but could not do so. She asked Dagdanasar how to open it and eventually, he opened the door. The complainant deposed that, immediately the door was open:

45. [54]

    On leaving the house the complainant went and stood under the eaves over the garage to wait for her sister. She felt terrified, scared, and paranoid and wanted to leave the area. She told the jury that she was:

46. [55]

    Realising that she had sent her sister the wrong location and noticing that Dagdanasar was looking at her from inside the house, Ms A walked down the street and away from the house. She said:

47. [56]

    As she waited for her sister the battery on her mobile phone lost charge. She remained at that location, waiting, and then saw a police car driving towards her. The car stopped and two policemen got out. One of them said, "We've got a call from someone who is really worried about you". Ms A felt apprehensive to speak to police, anxious, and embarrassed. Although the officers asked her what had happened, she didn’t answer as she “didn’t want to say it”. Eventually she was able to tell them, “I was taken advantage of”.

48. [57]

    The complainant was taken to hospital to be examined. She was feeling very anxious when speaking with the doctor, “horrible” and “not okay”. She was also in pain with her tongue and mouth stinging, and her vagina and anus so painful that it hurt her to sit down.

49. [58]

    Ms A later made a statement to police. She was shown some short videos of sexual activity and identified herself as the female on screen. The complainant said that she had not consented to any of the sexual activities recorded. Until that point Ms A had never knowingly consumed methylamphetamine, or the drug known as “GHB”.

50. [59]

    The case for Irmak as it was put to Ms A was that, after entering the house with Yasser-Basoglu, the complainant displayed her naked body to Irmak, asked to smoke heroin and herself lit the pipe and smoked it, reclined on a lounge and began to masturbate and, whilst rubbing Irmak’s back, asked “Somebody play with me, fuck me”. It was put to Ms A that she initiated sexual activity with Irmak by taking his hand and putting it to her genital area and saying, “Come on, fuck me”. It was put that it was at that time, being the first sexual activity to have occurred, that Dagdanasar began to record events. The complainant did not accept what was put to her, becoming so distressed that the trial judge took a short adjournment.

51. [60]

    It was then suggested to Ms A that, having had vaginal and anal intercourse with Irmak, all initiated by her, that she then called Yasser-Basoglu to her and initiated sexual activity with him by performing fellatio on him. It was put that soon after, Ms A had intercourse with both Irmak and Yasser-Basoglu simultaneously. The complainant did not agree.

52. [61]

    Ms A did not recall having any personal conversations with Irmak, although she had some recollection of him saying he was “an MMA fighter”. She did not remember him saying he was a UFC or “Ultimate Fighting Champion” fighter, who fought in a cage with “no holds barred”, or that he knew various named celebrities. Ms A had no memory of telling Irmak that she worked for a particular company, although she agreed that she in fact did some casual work there. She did not recall Irmak asking her about the bruises on her body, or telling him that she had fallen down the stairs at her mother’s home.

53. [62]

    In cross-examination for Dagdanasar Ms A agreed that she had taken cannabis, on two occasions, and, on one occasion, MDMA (or ecstasy), in the months prior to November 2016. She said that her memory of events on the occasions on which she had consumed those drugs was relatively unaffected.

54. [63]

    The complainant was asked about her memory of the after party, of getting into a blue Ford Festiva motor vehicle following the after party, and of asking the driver, Navroop Singh, to drop her at the railway station, but she had only limited recollection of the party, and none of the Festiva and Mr Singh.

55. [64]

    Various events were put to Ms A as having occurred at the Glenwood house, such as Dagdanasar making lunch for the complainant, or playing music for her, but she had no memory of them. She recalled seeing a Facebook “friend request” from the older man at a later time, but did not recall seeing it at the house.

56. [65]

    The complainant was questioned about entries in the phone log, Ex. C, and entries recording other communications contained in screenshots (Exs. 7, 9, 13, etc) but she had little or no memory of most of them. She had no memory of an entry referring to a Google search of the term “angel dust”.

57. [66]

    Dagdanasar’s case, as it was put to Ms A by his counsel, was that Dagdanasar took no part in any sexual activity with the complainant when the other two men were present, other than to film events involving them, having consensual intercourse with her only after Irmak and Yasser-Basoglu had left the premises. That sexual activity occurred, it was suggested to Ms A, at her instigation. The complainant rejected what was put to her.

58. [67]

    Ms D was a school friend of Ms A. She saw her at the school formal and observed her to be “definitely drunk”. Ms D also saw the complainant at the after party, and noted her to be “very drunk”. She did not leave with the complainant.

59. [68]

    Mr E hosted the after party at his father’s apartment at Auburn. He had previously been a student at the same school as Ms A and knew her from school, although they had not been friends. He saw her arrive at the party and said hello, and later said goodbye to her when she was leaving. She was one of the last to leave; she appeared to leave alone. Thirty or forty minutes later, at 1:42am on 9 November 2016, Mr E sent Ms A a message to say she could stay at his father’s home, as she had appeared to have no lift home. He did not receive a response until about 7am, where there was a brief exchange of messages. A message he sent to Ms A in the interim about not “snitching”, he believed he had intended to send to another person.

60. [69]

    Navroop Singh told the jury that, at around 1:40am on 9 November 2016, he saw a girl wearing a long dress in the street near where he had left his car, a blue Ford Festiva. The girl asked him to help her. He opened the passenger door of his car for her and she got in. She asked him to drop her at a railway station and, after making a phone call, to drive her to Lane Cove. He thought that the girl was “not normal”. Mr Singh drove about the streets in the Auburn area for a time (Ex. H); he felt that he should help the girl. He was not, however, able to take her to Lane Cove as he had to go to work. The girl was angry about this. He asked her to get out of the car but, other than a stop for her to go to the toilet, she would not. He drove about at random and, after about 30 minutes, as she still would not leave his car, he helped her from it. She kissed him on the lips, and he left her standing in a residential street that was near to a train station, although not at a train station.

61. [70]

    Ms F was Ms A’s friend from school. She saw the complainant at the pre-formal drinks that her parents hosted, and then later at the formal. Ms F had very little interaction with Ms A at either event. She saw Ms A at the after party, where she observed the complainant to ask “everyone” for a sip of their drinks. Ms F thought that Ms A had been drinking, but she “seemed fine”. Following the after party, Ms F received a photograph sent to her by the complainant, and she had a missed call and a voicemail from her, the latter at 1:40am. When Ms F listened to the voicemail it sounded like a conversation between Ms A and a male, in which Ms A said “I’m so drunk” and “I need it legit”. There was no message directed to Ms F.

62. [71]

    Ms F was shown a record of SnapChat exchanges between herself and Ms A on 9 November 2016 (Ex. D) and confirmed that she and the complainant had exchanged the messages recorded. Between 1:05pm and 2:16pm on 9 November 2016, the following exchanges were recorded:

63. [72]

    At 2:16pm Ms F received a video sent by Ms A depicting the back of a man with “not a lot of hair” who seemed to be turning on a television. Exchanges between 2:16pm and 8:23pm (with no other evidence as to the time at which individual messages were sent) included:

64. [73]

    Ms A sent similar messages to another friend, Ms G, using SnapChat, including a message to the effect that she was drugged, had been raped by three guys, and was stuck in the house. Ms G told the jury that SnapChat messages are automatically deleted once read.

65. [74]

    A friend of Ms A, Mr H, had also received messages from the complainant in the early hours of 9 November 2016, including that extracted at [23] above, in which Ms A said she was at “some random fuck head’s house” and not knowing what to do. Mr H confirmed that the various messages had been sent and received. He recalled them being about Ms A wanting to be picked up, and said that he refused. He had offered to send an Uber to her location but “she wasn’t making a lot of sense as to where she actually was”. He said:

66. [75]

    He thought that she sounded drunk.

67. [76]

    Mr L was a school friend of the complainant. He did not attend the school formal, but did go to the after party, where he saw Ms A, and noted she was drinking alcohol. When he next saw her at the party she was “passed out” on a bed there. A few hours later, at about 3am on 9 November 2016, when he was at home in bed he took a call from Ms A. She sounded “really spaced out and intoxicated”; she didn’t know where she was. She wanted him to come and get her and take her home. Mr L could hear a male voice in the background to the call.

68. [77]

    The complainant’s father, Mr C, gave evidence that he telephoned the complainant at about 12:30pm on 9 November 2016. He asked her a number of questions about her school formal, and found that there were long pauses before she gave one word answers. Mr C “couldn’t get a conversation out of her” and thought that she didn’t sound herself. He thought the complainant sounded anxious and depressed. The call ended. When Mr C tried to telephone his daughter later, he received no answer. There was no response to a number of calls and text messages that day, which was unusual. Mr C was very concerned about the complainant.

69. [78]

    When he saw her at her mother’s house the following Sunday she was curled in a foetal position and unable to speak to him. She refused to tell him why she was in that state, suggesting only that he ask her sister, Ms B. Mr C found out about the events of the previous weekend by speaking to his other daughter.

70. [79]

    The complainant’s sister, Ms B, told the jury that she was older than Ms A by about three years. She accompanied her sister to the pre-formal drinks and noted that Ms A had four or five glasses of champagne there. When their mother picked them up, she observed her sister to be stressed, jittery, and “a little bit tipsy”. They drove to Marsfield and the complainant left the car to go in to the school formal.

71. [80]

    The following day, 9 November 2016, Ms B sent her sister a text message asking about the formal but received no response. She tried to call her a number of times later that day, without answer. When Ms A finally answered a call she did not sound very coherent. She sounded very stressed, was crying, and she said that there were people following her. Her breathing was short and shallow, as if she was having a panic attack. When Ms B asked the complainant where she was she said that she had left the man’s house and was running. She told her that “they filmed it”. She sent Ms B her location. Ms B contacted the police.

72. [81]

    Senior Constable (“SC”) Geyeregger told the jury that he and another officer, Constable (“Con”) Sean Backers, responded to a “concern for welfare” call at about 7.15pm on 9 November 2016. While driving in Glenwood the officer saw a young girl [Ms A] standing on a residential street, less than a kilometre away from the premises where the events took place. She fitted the description of a girl they had been asked to look for, and the officers stopped, and SC Geyeregger spoke to her. He thought that something was wrong as she was “not normal” and was staring into space. He observed a number of large dark bruises on her legs. The officer asked what she was doing and noted that she seemed scared. She did not respond to some of his questions. She looked tired and was shaking. SC Geyeregger asked what was wrong, and said that he could help her. She responded, “I got used last night, sexually”.

73. [82]

    The complainant had her handbag with her and was asked about the contents. She produced a small bag of cannabis, saying, “They gave me this”. Her formal gown was also in the handbag. She told the officers that she wanted to get away from the area as she was scared of the men. As SC Geyeregger and Con Backers drove Ms A to Blacktown Hospital she told them that she had gotten very drunk and “a woggy looking guy” had driven her to a house where “three guys aged between 30 and 40 had sex with her”. She said the men gave her some powder, angel dust, “to make her horny”. Ms A told SC Geyeregger that one of the guys who raped her had “No Fear” tattooed across his throat.

74. [83]

    Con Backers did not give evidence, but the substance of what he had said in his statement was given through another officer. Con Backers had seen Ms A as she stood on the street. He thought that she looked “vague and expressionless”. She did not respond to a number of questions that he asked her, but eventually said that she had been taken advantage of. She was shaking and her eyes were watering. She said that the clothes she was wearing, a hoodie and a pair of shorts, belonged to “the guys”.

75. [84]

    The officers delivered Ms A to the Rape Crisis room at Blacktown Hospital, where she was attended by staff.

76. [85]

    Dr Fernando Pisani, a specialist in emergency medicine, saw Ms A at Blacktown Hospital at about 10:15pm on 9 November 2016. The doctor took a history from Ms A, who told him that her recollection of events was blurred as, for two days prior to her school formal she had not eaten due to anxiety, and she began drinking at about 3:30pm on 8 November 2016 at a pre-formal event. She said she had been “pretty intoxicated”.

77. [86]

    After the formal gatherings, Ms A told Dr Pisani that she had been sitting on the pavement when a car pulled up. A man got out of the car, after which she recalled being in the car with the man having intercourse with her. She gave an account of being taken to a house where the man had “painful sex” with her. She referred to two other men in the house who were “doing drugs”. She was given alcohol by the men and a pipe was “shoved in her mouth”, from which she inhaled a “bad and chemical” substance. The pipe was given to her more than once. Ms A told the doctor that she had felt “out of it” and drunk. She recalled her clothes being removed and being naked. She described various incidents of penile-vaginal intercourse to Dr Pisani, and said that “countless times” during the night the males had all “shoved their penises in [her] mouth”. She recalled the first male penetrating her anus with his penis and crying out in pain. Ms A said she had been “really scared”. She said the door of the house was locked but the older male opened it for her.

78. [87]

    The doctor noted a number of injuries to Ms A. Exhibit J was a document containing a summary of the injuries observed, and Ex. K photographs of them. The injuries included multiple bruises to various locations on Ms A’s arms and legs, including bruises to the inner aspect of Ms A’s upper arms and thighs consistent with fingertip bruising, and all of which related to her complaint of assault. Dr Pisani concluded that the apparent fingertip bruising to those areas was consistent with multiple assaults by multiple assailants over a period of hours during which the complainant was unable to position herself due to intoxication. There were also linear abrasions to both breasts that related to the removal of adhesive tape.

79. [88]

    Ms A reported pain in her vaginal and anal area and the doctor saw both reddening and tearing of the vagina and hymen. The tearing observed consisted of a complete transection of the entire width of the hymenal membrane, with bruising, of recent origin. It was not possible for the doctor to make a complete inspection of the vaginal vault or anus because Ms A was in so much pain she would not tolerate the anal - genital examination.

80. [89]

    Ms A did not refer to a mouth injury and the doctor did not recall examining her mouth. There were some bruises that pre-dated the relevant events, identified to Dr Pisani by the complainant.

81. [90]

    On 24 November 2016 a further medical examination of the complainant occurred at the Royal North Shore Hospital, conducted by Dr Ellie Freedman from the North Sydney Sexual Assault Service. Ms A gave a history of severe pain underneath her tongue during an incident of oral penetration. Dr Freedman examined Ms A for any injury to her mouth and observed an area of reddening to the frenulum (the tissue connecting the tongue to the floor of the mouth), and some thickened scar tissue at the base that appeared to be the beginnings of scar tissue formation. The doctor thought that what she observed was consistent with the history she had been given of forced penile oral assault occurring about sixteen days earlier.

82. [91]

    Sergeant Mark Roots had been involved with the investigation at an early stage. He saw Ms A with her sister a little before 2am on 10 November 2016, at Riverstone Police Station. She appeared worried, scared, and distressed. The officer found it very difficult to communicate with Ms A at first, but eventually she was able to give him an account of having been sexually assaulted vaginally, anally, and orally, multiple times by three men at a Glenfield residence. She was later taken on a “drive about” of the area and was able to point out the house.

83. [92]

    A statement was taken from the complainant by a female officer later.

84. [93]

    In cross-examination for Dagdanasar the officer was asked to identify his notes of the initial conversation he had with the complainant, and he was asked to give a full account from them of what she had said about the events at the house in Glenfield (all of which, apart from a reference to drinking something that could have been bourbon, was consistent with the complainant’s evidence to the jury).

85. [94]

    The police officer in charge of the early stages of the investigation into Ms A’s complaint, Detective Senior Constable (“DSC”) Rebecca Gibson, said that entry was gained to the premises at which these events had occurred, a residential home on Crestview Drive at Glenwood, on 10 November 2016, by authority of a warrant. No person was in the premises when it was entered by police.

86. [95]

    A search was conducted of the house and a number of items were seized, including documentation in the names of Irmak and Dagdanasar. A glass pipe and bowl were amongst these items.

87. [96]

    Inquiries were made with the real estate agent that managed the leasing of the Crestview Drive premises. DSC Gibson was told that there was no current lease of the property, although it had been made available to Irmak on 7 November 2016, as he and another person had applied to rent it. DSC Gibson was provided with the identity documents for the two applicants (photographs of which, taken from Irmak’s mobile phone, were in evidence as Ex. P), and found that, apart from the names given on each, other details, such as address and drivers licence number, were identical. The officer checked the single driver licence number provided by Irmak and the other proposed tenant, Steven Pull (or Poole, both spellings being used in the transcript of the trial) and found that there was no valid licence for either name. No person by the name of Steven Pull/Poole could be located.

88. [97]

    A crime scene officer gave evidence concerning the premises in which the relevant events took place. A plan of the premises and a number of photographs of them were tendered to the jury. That evidence showed that the premises, a two-storey home with four bedrooms and two bathrooms, was very sparsely furnished, with most rooms completely empty of furnishings or any personal possessions.

89. [98]

    In a downstairs room referred to as the “family room” was some of the limited furniture in the house, including a lounge and coffee table. In that room, a glass pipe that contained methylamphetamine was found, as was a bottle labelled “Jungle Juice” that later tested positive for isobutyl nitrite.

90. [99]

    It was determined that the electricity supply to the premises had only been connected at 2:08:59pm on 9 November 2016.

91. [100]

    Oversight of the investigation was later assumed by the Sex Crimes Squad. DSC Courtney Baron made a number of inquiries, including obtaining CCTV footage from the apartment block where the after party attended by Ms A had taken place.

92. [101]

    DSC Sharon Brown of the Sex Crimes Squad was the officer in charge of the investigation. She told the jury that, from 10 November 2016, attempts were made to locate both Irmak and Dagdanasar at their respective home addresses and at locations each was known to frequent, but they could not be located. On 16 November 2016, information was received that the applicants were at an hotel at Brighton Le Sands. DSC Brown and other officers went to the hotel and Irmak was arrested. Dagdanasar was also arrested, in a street near the hotel. They had been staying at the hotel with a reservation under someone else’s name. DSC Brown discovered that the applicants had, from 12 November 2016, stayed at other hotels at Arncliffe and Parramatta, in each instance with reservations using another person’s name.

93. [102]

    After being taken to Kogarah Police Station following his arrest, Irmak asked DSC Brown where the “third guy”, whom he named as “Mustafa Yucebasoglu”, was. He told the officer that it had been “Mustafa” who had picked Ms A up in his car. He said that “one thing led to another” and he “had video to prove it was consensual”. The applicant Irmak claimed that Ms A was “there to have fun”, and that she was a “very open” person. He complained that DSC Brown was “ruining [his] life”. When asked by the officer why he had “run” Irmak responded that he had not run. He said, “I wanted to build up my case before I hand myself in”.

94. [103]

    Irmak’s mobile phone was seized. Recovered from the phone were four video files that showed sexual activity in which Ms A could be seen. These files were tendered as Ex. F (being those that had been shown to Ms A in cross-examination).

95. [104]

    A Facebook friend request that had been sent to Ms A by Dagdanasar was investigated. It came from a Facebook account in the name of Roy King.

96. [105]

    As part of the investigation into the matter, police had established surveillance on the Crestview Drive premises. No person went to the premises after 10 November 2016.

97. [106]

    DSC Brown gave evidence about telephone activity and telephone call charge records secured during the investigation. Exhibit T was a summary or chronology of telephone activity that went some way to establishing a time-line of sorts of events on 9 November 2016. Although there was some dispute at trial about the accuracy of the times recorded in Ex. T, the more significant entries establish that, at 2:56am on 9 November 2016 Yasser-Basoglu placed a voice call to Irmak. The cell tower that transported the call was located at Auburn. At 4am, the woman Ms A had seen briefly in the house at Crestview Drive called a taxi company. At 4:34am Ms A sent the message to Mr H set out earlier in which she told him that she “was at some fuck head’s house” and was “really scared”. At 2:08pm a technician from an electricity supply company completed his “Job Report” relating to the connection of electricity to the premises; and at 2:55pm an unidentified telephone user, inferentially Dagdanasar, sent Irmak a message saying “We’re have power now”.

98. [107]

    The first recording in Ex. F was made at 5:14am.

99. [108]

    DSC Brown also told the jury that a telephone call made by Irmak to an unidentified male on 24 February 2017 had been intercepted. A transcript of the conversation, translated from the original Turkish, was tendered as Ex. S. In it, Irmak told the male that he had caused Dagdanasar to make a recording on his, Irmak’s, mobile phone of him having sexual intercourse with “the girl”, without letting her know it.

100. [109]

     The evening gown that had been worn by the complainant when she was taken by Yasser-Basoglu to the Glenwood house was later recovered by police and subjected to forensic testing. Semen detected on six locations on the dress had the same profile as that of the applicant Irmak.

101. [110]

     Semen was also detected on a swab taken from the complainant’s high vagina during a medical examination; the DNA recovered from it on scientific analysis originated from at least two individuals, with the major contributor to the mix having the same profile as the applicant Dagdanasar. The DNA from the minor contributor was unsuitable for comparison purposes. Semen from a swab of the low vagina originated from at least three individuals, and the major contributor to the mix had the same DNA profile as Dagdanasar. The DNA from the minor contributors was not suitable for comparison. Semen from a swab taken of the complainant’s anus contained the DNA of two individuals, but it could not be further analysed.

102. [111]

     On being located by police officers the complainant was taken to hospital for examination. Blood and urine samples obtained revealed the presence of cannabinoids, amphetamines, gamma-hydroxybutyrate or “GHB”, and 4-Hydroxybutanoic acid (the latter detected in urine only).

103. [112]

     A log of the recoverable activity on the complainant’s mobile telephone in the period from 12:57am on 9 November 2016 to 8:20pm on the same date was in evidence as Ex. C, referred to earlier. From 2:16:16am the complainant sent a series of messages to her friend, Mr H, asking for help at a time when she was alone and stranded, without transport. Ms A told her friend that she did not have transport and needed help. At 3:08:54am she sent a message to another friend saying “I’m still on the street”.

104. [113]

     The complainant telephoned a friend at 4:34:08am, with the call records showing a 29 second call. At 4:35:41am she sent a message to her friend Mr H, in the terms given in [23] above.

105. [114]

     At 9:08:59am an internet search was made via Google of the term “angel dust”. Similar searches were made at 11:46am and 11:47am.

106. [115]

     At 3:32pm that same day, in response to a message from Mr H, who commented that she was still alive, the complainant said:

107. [116]

     At 4:49pm she responded to his query “Who is” with a message, “The guys”.

108. [117]

     At 5:36pm she messaged a third friend:

109. [118]

     Separately, the Crown tendered a log of SnapChat communications between the complainant and Ms F, which became Ex. D.

110. [119]

     At 1.05pm on 9 November 2016 the complainant sent a message reading “Omfg I got raped dude”. During a series of exchanges shortly thereafter the complainant said:

111. [120]

     She told her friend that she did not know who they were but said:

112. [121]

     She referred to there being three men and repeated that she was “so scared”.

113. [122]

     John Farrar is a forensic pharmacologist with, at the time of the applicants’ trial, some 37 years of experience. Mr Farrar had been provided with the certificate of analysis of the blood and urine samples taken from the complainant, a copy of the Crown Case Statement, and copies of [unspecified] witness statements obtained by police during the course of investigation. He also saw the four mobile telephone recordings made by the applicant Dagdanasar, in which sexual acts were recorded as they took place.

114. [123]

     Mr Farrar told the jury that the complainant’s blood alcohol level at 9:58pm on 9 November 2016, the time when the blood sample was obtained, was 0.007 grams per 100 millilitres of blood. It was not possible to make a “back calculation” of Ms A’s blood alcohol level for the period when she was at the Glenwood premises. A metabolite of the active constituent of cannabis was also present in the blood sample at a level of 0.002 milligrams per litre, a level too low to point to the drug having had any effect on Ms A. Amphetamine was present as a metabolite of methylamphetamine or “ice”. Methylamphetamine is a psychoactive stimulant. Mr Farrar said that when administered, typically by smoking or injecting it, methylamphetamine had an immediate effect on the brain, inducing a feeling of extreme euphoria, followed by feelings of sedation and depression as the drug becomes depleted over time. The latter state is one almost of disassociation, accompanied by difficulty in remaining awake. The levels of amphetamine present in Ms A’s blood indicated that she likely ingested a quantity of methylamphetamine such as to cause substantial “excitatory effects”, with rebound sedation as the drug dissipated.

115. [124]

     The substance detected in the urine sample from Ms A, 4-hydroxybutanoic acid - “GHB” or “liquid ecstasy” - causes sedation and euphoria, but also dizziness, agitation, confusion and sleepiness. The sedative effects can be worsened when consumed with alcohol. GHB is typically consumed having been dissolved in a liquid. An elevated dose can cause profound loss of consciousness. When consumed with alcohol the sedative effects of the drug are exacerbated, as is the case if both of those substances are consumed at a time when the person is in the depressive state following methylamphetamine use.

116. [125]

     It was Mr Farrar’s opinion that Ms A’s ability to perceive threats to her safety and defend herself against sexual assault was severely diminished by the drugs that she had ingested. He considered that it would not have been possible for her to make judgments or rational decisions due to the substances consumed.

117. [126]

     Of the liquid found at the Glenwood premises in a bottle labelled “Jungle Juice”, Mr Farrar said that the drug found in the liquid, isobutyl nitrite, was one used recreationally to enhance sexual enjoyment and libido. A use of the drug is as a “smooth muscle relaxant”, specifically, to relax the anal sphincter, to facilitate the insertion of objects into the anus. The half-life of isobutyl nitrite is very short, with the concentration of the drug in the blood and urine halving every 1.2 minutes.

118. [127]

     In cross-examination Mr Farrar was asked what drug the term “angel dust” referred to. He deposed that “angel dust” was a street term for phencyclidine, a substance ordinarily smoked via a pipe. Phencyclidine is a dissociative hallucinogen that causes an affected person to dissociate from his or her environment. It is a drug found only very rarely in Australia.

119. [128]

     Mr Farrar agreed that, at the time Ms A made internet searches on her mobile telephone, she was capable of making a decision to seek out the information. The relevant searches, as recorded in the complainant’s telephone log, were made on 9 November 2016 as follows:

120. [129]

     Although he did not accept that the messages Ms A exchanged with others, as evidenced in the telephone log, could be regarded as demonstrative of lucidity, he accepted that they showed “an ability to communicate on a certain level”. Mr Farrar observed, however:

121. [130]

     Referring to the levels of “GHB” found on analysis of the complainant’s urine sample, Mr Farrar confirmed that Ms A must have ingested the drug within a few hours of the sample being obtained, and may have repeatedly ingested it over the time spent at the Glenwood premises.

122. [131]

     There was no case called before the jury by either of the applicants.

The Verdicts

1. [132]

   Each of the 10 counts brought against the applicants at trial were charged pursuant to s 61JA(1) of the Crimes Act, requiring the Crown to prove to the criminal standard that there was an act of sexual intercourse by one of the applicants or Yasser-Basoglu, at a time when they and Yasser-Basoglu were engaged in a joint criminal enterprise to sexually assault Ms A; that the complainant did not consent to the act; that the applicants knew she did not consent; and that actual bodily harm was recklessly inflicted on Ms A at the time, or immediately before or after the act.

2. [133]

   The jury returned a verdict of guilty to count 2 as charged against each applicant. The act relied upon is set out at [25] above, being an act of anal intercourse committed by Irmak acting in joint criminal enterprise with Dagdanasar (and Yasser-Basoglu).

3. [134]

   With respect to counts 1, 3, 8, 9 and 10, the jury found the applicants not guilty of each count as charged, but guilty of the statutory alternative relied upon by the Crown, that is, an offence contrary to s 61J. The latter offence as particularised by the Crown did not require the Crown to prove the element of reckless infliction of actual bodily harm but did require proof that the applicants acted in company. By the verdicts returned, the jury clearly did not find the former element of the counts as charged proved beyond reasonable doubt.

4. [135]

   The jury returned verdicts of not guilty to counts 4, 5, 6, and 7. Counts 4, 5, and 6 all relate to acts of intercourse carried out by Yasser-Basoglu in an upstairs bedroom of the house, at a time when the two applicants were both in the downstairs section of the house. It is reasonable to conclude that the jury were not satisfied that it had been proved to the criminal standard that, at that time, the applicants were acting in company with Yasser-Basoglu. They were thus acquitted of criminal responsibility for those acts. Count 7 was an allegation of oral intercourse by Dagdanasar, causing tearing to Ms A’s frenulum, committed at a time when there was some question in the complainant’s evidence as to whether or not Irmak and Yasser-Basoglu remained in the Crestview Drive premises, or had left it. It is reasonable to conclude that the jury were not satisfied that it had been proved to the criminal standard that, at that time, Dagdanasar was acting in company with Irmak. It is noted that the Crown did not rely upon a statutory alternative in circumstances where the element of reckless infliction of actual bodily harm was proved, but the element of in company was not, and both applicants were acquitted of count 7.

The Proposed Appeals

1. [136]

   The applicant Irmak complains of the unreasonableness of the verdicts of guilty returned with respect to count 2, a charge contrary to s 61JA(1) of the Crimes Act, and count 3, being the statutory alternative to that count, an offence of aggravated sexual assault contrary to s 61J of the Act (grounds 1 and 2). He also pleads that the trial miscarried because of the way the Crown deployed the evidence of Mr Farrar in closing address.

2. [137]

   The complaint in relation to count 2 is that it was not open to the jury to find the element of reckless infliction of actual bodily harm proved beyond reasonable doubt. The applicant points to the Crown’s “global” reliance upon the multiple injuries to Ms A seen on medical examination after she left the house, which were regarded as consistent with the assaults complained of. He notes that the only injury the Crown could particularise as having occurred in the context of an act of intercourse was the tearing to the complainant’s frenulum, which occurred when the complainant was orally penetrated by Dagdanasar, reflected by count 7, a count of which the applicants were each found not guilty.

3. [138]

   The complaint in relation to count 3 is that, particularly having regard to the verdicts of not guilty returned with respect to counts 4, 5, 6, and 7, it was not open to the jury to conclude that Irmak was present when the particularised act, an act of oral penetration committed by Yasser-Basoglu, took place. It is submitted that the obvious rationale for the verdicts of not guilty returned to counts 4 – 7 is that the jury were not satisfied that the applicant was present and in company at the time of the commission of the relevant acts; there having been no direct evidence from the complainant that Irmak was present when count 3 took place, he should have been similarly acquitted of that count.

4. [139]

   Ground 3a is one which was raised late, at the hearing of the application, in lieu of ground 3 as originally pleaded. The applicant submits that it was impermissible for the Crown to rely upon the expert pharmacological evidence to the effect that Ms A was adversely affected by the intoxicants she had in her body such that she could not make rational decisions, to go directly to proof of the element of the absence of consent to intercourse. Accepting that the evidence of Mr Farrar was properly admitted, the applicant argues that the jury were invited by the Crown to equate the evidence of the complainant’s incapacity to make rational decisions with evidence of lack of consent, in circumstances where irrationality and consent cannot be used interchangeably.

5. [140]

   The Crown referred the Court to the case for Irmak as it was put to the complainant at trial. Significantly, for the purposes of grounds 1 and 2, his case was that he was present and participating in the activity reflected by counts 2 and 3, although his case was that the activity was consensual, and did not occasion injury. Importantly, neither of the applicants disputed his presence during instances of sexual intercourse, with the exception of those that took place upstairs involving Yasser-Basoglu.

6. [141]

   As to the question of actual bodily harm, the Crown conceded that it did not, at trial, particularise a specific injury referable to count 2. However, it argued that there was clear evidence of injury that was referable to count 2, the act of anal intercourse by Irmak. The Crown pointed to a number of pieces of evidence, from the complainant, from Sergeant Root, and from Dr Pisani that, it submitted, was sufficient to establish that the complainant had sustained some injury to her anus due to the activity charged as count 2.

7. [142]

   The Crown disputes that the Crown Prosecutor at trial addressed the jury on the basis that the sort of significant intoxication of which Mr Farrar gave evidence was and could be used as the equivalent of evidence of the absence of consent. It was pointed out that the Crown Prosecutor had – at the insistence of defence counsel – returned to the subject of consent and the pharmacological evidence, and referred the jury to Ms A’s capacity to freely and voluntarily agree to sexual intercourse as the question to be considered. The jury was referred to the whole of the evidence on that subject, of which Mr Farrar’s testimony was but one aspect.

8. [143]

   Proposed Ground 1: The evidence of the act grounding count 2 is set out at [25] above. It was an allegation that, very soon after she was brought into the Crestview Drive premises by Yasser-Basoglu, and in the presence of all three men, Ms A was given a drink to consume in one gulp, and a pipe containing - it is reasonable to infer - methylamphetamine, a drug the complainant had never consumed before. Irmak had then called her to him and, upon her – such was her state of intoxication - crawling to him, he had roughly pushed his penis into her vagina, being count 1, and then pushed it into her anus, having anal intercourse with the complainant (count 2). Ms A said that this act caused her discomfort.

9. [144]

   Sensibly, no issue is raised about the evidence supporting this count insofar as it relates to the act of intercourse, the absence of consent, the applicant’s knowledge or recklessness as to the lack of consent from Ms A, or that he was in company; the point taken is as to proof of the element of the reckless infliction of actual bodily harm. The applicant submits that the Crown was “wrong” to rely upon any or all of the injuries sustained by the complainant over the period she was in the Crestview Drive premises to prove this element, and contends that there was no injury that could properly be regarded as having been inflicted at the time of intercourse, or immediately before or after it.

10. [145]

    The applicant is correct to complain of the way in which the Crown cast its case with respect to the element of recklessly inflicting actual bodily harm, although that does not necessarily mean that it was not open to the jury to return the verdict it did.

11. [146]

    In opening its case to the jury, the Crown Prosecutor articulated the act of intercourse relied upon with respect to count 2, but not the nature of any actual bodily harm, or when it was inflicted. In a general sense the Crown told the jury that there would be evidence of “bruises and other injuries”, including an injury to the underside of Ms A’s tongue, significant tenderness, and a complete transection of the hymen. Referring to that element, the Crown Prosecutor told the jury:

12. [147]

    In his closing address, the Crown Prosecutor submitted to the jury on this topic:

13. [148]

    That approach was simply to throw up the evidence of the multiple injuries sustained by Ms A and, in effect, invite the jury to take its pick as to whether any or all of the injuries were inflicted in the time period encompassed by the phrase “before, or at the time of, or immediately after” individual acts of intercourse averred on the indictment. Such an approach is, as the applicant complains, wrong. The Crown should not have advanced its case in this nebulous way; it gave rise to the very issue that is advanced now by the applicants before this Court.

14. [149]

    Without the Crown particularising a specific injury inflicted at a specific time with respect to a specific act of intercourse, there could be no certainty that 12 jurors had found as a fact that the same injury had been inflicted at the same time with respect to the same act of intercourse. With 10 identically worded charges on the indictment it left open the prospect that an accused could be found guilty by the jury of a particular count on the indictment without there being unanimity as to an essential element of the offence, the infliction of an identified injury.

15. [150]

    In settling the indictment, in formulating its case, and in presenting its case to a jury, the Crown must always be astute to avoid such an outcome. The Crown is obliged in a case of this nature to identify the injury relied upon as having been recklessly inflicted, and to make clear the time at which the particular injury relevant to a nominated act of sexual intercourse occurred, such that the accused, the trial judge, and the jury understand the case to be proved if verdicts of guilty are to be returned.

16. [151]

    In this instance however, there is reason to conclude that the jury was more careful about what constituted proof of reckless infliction of actual bodily harm relevant to individual counts on the indictment than was the Crown in articulating its case. By the verdicts returned it is clear that the jury gave very careful attention to the directions given to it by the trial judge on this aspect of the matter, directions about which no complaint is made, and was astute to identify evidence of injury referable to specific acts of intercourse.

17. [152]

    There was medical evidence of a particular injury in relation to count 7 – the torn frenulum – given by Dr Freedman, an injury readily attributable to the act of oral intercourse relied upon for that count. However, the jury returned verdicts of not guilty with respect to both applicants for count 7, clearly on the basis of a reasonable doubt as to proof of the element of “in company”. That injury must be set aside.

18. [153]

    Count 2 was the only other count about which there was some evidence which, when taken together, could amount to evidence of actual bodily harm referrable to it, and inflicted at the time it occurred.

19. [154]

    Dr Pisani was able to identify particular injuries to Ms A as being injuries attributable to events at Crestview Drive. Exhibit J listed those injuries, and the “stated mechanism” that caused each, being either (generally) “related to assault” or “not related to assault”. Exhibit K was comprised of photographs of the injuries listed in Ex. J.

20. [155]

    There was an issue taken at trial as to Dr Pisani’s reliance upon Ms A to identify those injuries she had sustained prior to 9 November 2016, but the doctor saw no reason not to accept Ms A’s knowledge of those matters, and it was open to the jury to accept the evidence of Dr Pisani as to injury inflicted on 9 November 2016.

21. [156]

    Dr Pisani was able to identify multiple bruises and lacerations, many of them to Ms A’s upper thighs – including fingertip bruising, consistent with Ms A’s legs being forced open and held apart - and breasts. He also gave evidence of significant tenderness to the “anal genital” area, with Ms A unable to remain still during his examination of that area, such was the pain she was in.

22. [157]

    Ms A herself told the jury that, when Irmak put his penis into her anus, “it felt uncomfortable […] and it felt like it shouldn’t be happening”. This discomfort that she felt was experienced at a time soon after Ms A had been given a drink to consume in one gulp, an available inference being that it was an alcoholic drink, likely mixed with GHB, and administered methylamphetamine from the glass pipe. Methylamphetamine, Dr Farrar had deposed, induced feelings of “extreme euphoria” and “sensations of indestructability”; whilst GBH and alcohol were both described by him in evidence as “sedative drugs”. That Ms A might have felt pain less sharply as a consequence of intoxication with these drugs is an available inferential conclusion.

23. [158]

    The next time an act of anal penetration was attempted by one of the three men was by Yasser-Basoglu, sometime after, in an upstairs bedroom. It was open to the jury to infer that the methylamphetamine, GHB, and alcohol that Ms A had been given shortly before the first “uncomfortable” act of anal intercourse had lessened with the passage of time to that point. On that occasion, Ms A said that, as soon as Yasser-Basoglu commenced the act, she screamed in pain and pushed him away.

24. [159]

    Taking that evidence together with the evidence of the earlier act of anal intercourse that caused discomfort, the subject of count 2, at a time when Ms A was significantly affected by sedating drugs, it was open to the jury to infer that Ms A already had an injury to her anus, necessarily occasioned at the time of the act constituting count 2.

25. [160]

    That she had some injury to that area, even a minor one, is further supported by Ms A’s own evidence of experiencing significant pain to her anus (and vagina) in the hours following these events, such that she found it difficult to sit down, and by the observations of both Dr Pisani and Sergeant Root of Ms A verbalising pain to her anus, and behaving in a way demonstrative of pain in that area.

26. [161]

    The applicant argues that there was no medical evidence of specific injury to Ms A’s anus, and “discomfort” is not sufficient to constitute actual bodily harm, but that is to take a narrow approach to analysis of the evidence, ignoring small pieces of evidence which, when taken together, provided an evidentiary basis to conclude that Ms A had suffered some bodily harm to her anus when anally penetrated by Irmak, as alleged by count 2. Some bodily harm which is not transient is sufficient to make out “actual bodily harm”.

27. [162]

    There is no definition of the phrase in the Crimes Act, and its meaning must be found in the common law. The description that is ordinarily used to give meaning to the phrase comes from R v Donovan [1934] 2 KB 498; (1936) 25 Cr App R 1, where it was said (at 509) that:

28. [163]

    A further statement to that effect can be found in McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305, at [44].

29. [164]

    It may be accepted that pain and discomfort are not of themselves “actual bodily harm”; however, the former in particular can be an indicator of actual bodily harm and, in the circumstances of this matter, it was open to the jury, taking the evidence of Ms A, Sergeant Root, and Dr Pisani together, to infer that Ms A suffered harm or injury to her anus when she was penetrated by Irmak. It is not essential for there to be medical evidence of it to reach this conclusion.

30. [165]

    It is reasonable to conclude, in that carefully discerning way, considering the whole of the evidence, the jury inferred that, with respect to count 2 alone of the 10 charged counts there was evidence of identifiable harm recklessly occasioned to Ms A by Irmak at the time of a particular act of intercourse, and at a time when he was acting in a joint criminal enterprise with Dagdanasar.

31. [166]

    It is noted that the trial judge, when imposing sentence, specifically referred to the evidence that pointed to an injury to the complainant’s anus having been occasioned to her.

32. [167]

    On that basis, the verdict returned by the jury to count 2 was one which was open to it.

33. [168]

    This ground is one where, raising matters of mixed fact and law, leave is required to advance it. Although that leave should be granted, we would dismiss the ground.

34. [169]

    It should, however, be clear from the foregoing that, as a general statement of principle, it is not open to the Crown when bringing a charge of this nature to decline to particularise a specific injury alleged to have been recklessly inflicted with respect to a particular act of intercourse. Proper particulars must be provided, at least in opening address, to enable the accused, the trial judge, and the jury to clearly understand what conduct it is of the accused that is relied upon to establish the particular elements of each offence charged.

35. [170]

    The approach taken by the Crown in this instance and its failure to properly articulate its case could have led to an injustice. That it did not is as a consequence of the care with which the jury approached its task; coupled with the possibility in the particular circumstances of this case for proper appellate scrutiny of the jury’s approach to the evidence.

36. [171]

    Proposed Ground 2: The evidence of the act grounding count 3 is set out at [28] above.

37. [172]

    The applicant argues that there was no evidence from the complainant that, at the time the act of oral intercourse was committed by Yasser-Basoglu, Irmak was physically present, and thus insufficient evidence of the element of being “in company”. Further, he argues that there is a degree of inconsistency between the verdict of guilty returned with respect to count 3, and the acquittals against counts 4 to 7. The applicant specifically abjures an argument based upon the asserted unreliability of the complainant.

38. [173]

    In effect then, this is a ground complaining of an inconsistent verdict. The test to be applied in assessing a ground of this nature is one of logic and reasonableness, expressed by the High Court in Mackenzie v R (1996) 190 CLR 348 at 366; [1996] HCA 35 (quoting from R v Stone (Court of Criminal Appeal (UK), Devlin J, 13 December 1954, unrep) with approval):

39. [174]

    The act of intercourse relied upon by the Crown was one that followed the act of anal intercourse carried out by Irmak that was the subject of count 2, although after the passage of an unquantified period of time. The complainant deposed that, after count 2 occurred, she was “given more drugs” by all three men and, “some time later” Yasser-Basoglu came up to her and put his penis in her mouth. She could not say how much time had elapsed, or what had occurred between being given more drugs, and Yasser-Basoglu putting his penis in her mouth. She did not refer to either Irmak or Dagdanasar as specifically being present when this act of oral intercourse took place.

40. [175]

    Ms A told the jury that, after Yasser-Basoglu desisted, he took her upstairs and into a bathroom, telling her they would “clean” her “dirty” vagina.

41. [176]

    Other acts of intercourse by Yasser-Basoglu, those which occurred in the upper storey of the house and which were charged as counts 4 – 6, did not result in verdicts of guilty, with the basis of the verdicts attributable to the physical distance between Yasser-Basoglu in an upstairs area, and Irmak and Dagdanasar in the downstairs section of the house undermining proof of the element of “in company”. The applicant points to those verdicts to submit that the same logic should have applied to this count, resulting in his acquittal.

42. [177]

    However, that submission overlooks a significant factual distinction between counts 4 – 6 (and 7, although in another respect) and count 3. At the time of the act of intercourse, the subject of count 3, Yasser-Basoglu remained downstairs, in the only furnished part of the ground floor of the house, where the drug paraphernalia and drinks were located, and where all three men had been from the point when Yasser-Basoglu and Ms A entered the house.

43. [178]

    The evidence was that the house in which these offences occurred was barely furnished, with only some seating and a coffee table on the ground floor of the house, and only built in furnishings elsewhere. That was the only area with any light source, being candles, and it was the area where the three men sat, smoked the glass pipe later found by police there, and jointly interacted with the complainant. There was no evidence that either man had left the area at the time of the commission of the act the subject of count 3.

44. [179]

    There is no reason to conclude that Irmak (or Dagdanasar) were not in the general area of the lounges, where this act took place, or that either had withdrawn from a continuing joint criminal enterprise, and no reason why the jury should have drawn such a conclusion. The footage Ex. F was compelling evidence for the three men continuing to act in concert to sexually assault Ms A.

45. [180]

    The Crown’s case was one of a continuing joint criminal enterprise that commenced when Yasser-Basoglu brought Ms A into the lounge area of the house where Irmak and Dagdanasar were sitting, and continued until Ms A left the house. The acts of all three men in administering drugs and alcohol to the complainant, in removing her clothing, and in committing various sexual assaults upon her were all relied upon as occurring in the course of an ongoing joint criminal enterprise. In those circumstances, it was not necessary for the Crown to prove that each man joined an individual and specific enterprise relevant to each individual instance of sexual intercourse. It was enough if the jury was satisfied that the applicants had joined an enterprise to sexually assault Ms A, and that the particular acts committed against her formed part of the enterprise.

46. [181]

    The applicant’s case at trial took no issue with there being ongoing and repeated sexual activity with Ms A that involved all three men present in the downstairs section of the house. His case, as it was put to Ms A at trial by his then counsel was that the act of oral intercourse the subject of count 3 occurred “shortly after” the act of anal intercourse by Irmak, and as part of what was advanced as a consensual series of acts with all three men present as participants and voyeurs:

47. [182]

    It was open to the jury to draw a distinction between those acts of intercourse that occurred on the upper floor of the house, after Yasser-Basoglu had removed Ms A from Irmak and Dagdanasar, and taken her to another area of the house, where he was alone with her, and those that occurred downstairs in the only habitable section of the house, where all occupants had been present together and engaged in sexual activity. There was a difference in the evidence as to whether those acts occurring upstairs could be proved to the criminal standard to have been committed by Yasser-Basoglu in company with the applicants as part of a continuing joint criminal enterprise, or were separate to the enterprise, and it was rational for the jury to draw the distinction.

48. [183]

    There is no inconsistency between the verdict returned for count 3, and those returned with respect to counts 4 – 6.

49. [184]

    The verdict of not guilty returned with respect to count 7 (which, chronologically, as the Crown closed its case to the jury, occurred after count 8) was likely to have been based upon a doubt raised as to the presence of Yasser-Basoglu and Irmak at the time, and thus proof of the element of “in company”.

50. [185]

    Dagdanasar’s case as it was put to Ms A was that he was alone with Ms A when an act of consensual penile-vaginal intercourse occurred, there being no act of oral intercourse. Whilst it was open on Ms A’s evidence to conclude that the act of penile-vaginal intercourse by Dagdanasar, the subject of count 8, occurred within the same context as the unzipping of her jacket and biting and grabbing of her breasts, the same could not be said of count 7. It appears from the complainant’s evidence that some time, even considerable time, passed between count 8 and count 7, and it is likely that the jury gave the applicants the benefit of a doubt as to whether Irmak and Yasser-Basoglu were present when the act of oral intercourse the subject of count 7 took place.

51. [186]

    In any event, the verdict returned for count 7 can be readily and rationally distinguished from that returned with respect to count 3. The differences do not support an argument that the verdict with respect to count 3 is unreasonable or not supported by the evidence.

52. [187]

    We would grant leave to advance this ground, it being one of mixed fact and law, but would dismiss it.

53. [188]

    Proposed Ground 3a: This ground relies upon what is said to be the misuse made by the Crown Prosecutor in closing address of the evidence of the complainant’s intoxication. In effect, it is argued that the Crown Prosecutor impermissibly equated evidence of intoxication and a resulting inability to make rational decisions with evidence of a lack of capacity to consent. The applicant points out that consent to sexual intercourse is not a matter judged by a standard of rationality, and the Crown wrongly conflated consent and rationality.

54. [189]

    In closing address to the jury the Crown Prosecutor made reference on two occasions to an inability to make rational decisions and consent to sexual intercourse. At an early stage of his address, when referring to the elements to be proved beyond reasonable doubt if verdicts of guilty were to be returned, the Crown Prosecutor said this about consent:

55. [190]

    In the absence of the jury after that submission was made, counsel for the applicants both complained about what the Crown Prosecutor had said and the use the Crown sought to make of the evidence of Mr Farrar, and demanded it be corrected. The Crown Prosecutor said he would return to the subject.

56. [191]

    The following day, towards the end of the Crown address to the jury, the subject was again touched upon:

57. [192]

    The question is whether those submissions had the effect complained of and if so, whether that led to a miscarriage of justice. Having considered the evidence, the addresses, and the directions given to the jury by the trial judge, there is, in our view, no reasonable possibility that the jury was misled by the Crown’s closing submissions, or that there was a resultant miscarriage of justice.

58. [193]

    To prove the charges against the applicants, one of the essential elements to be established beyond reasonable doubt was that Ms A did not consent to sexual intercourse, and that the applicants knew she did not or were reckless as to her lack of consent. As at the date of the events the subject of charge, the meaning of consent to sexual intercourse was given by s 61HA of the Crimes Act, in these terms:

59. [194]

    The Crown Prosecutor did, in his earliest submission to the jury on the subject of consent, appear to conflate incapacity to make a rational decision by reason of intoxication with proof of lack of consent. As Button J said in Tabbah v R [2017] NSWCCA 55, at [143], with the concurrence of Hoeben CJ at CL and Payne JA:

60. [195]

    Had nothing more than the Crown said initially in address been said on the subject, it may be that the jury would have decided the question of proof of the element of consent on an incorrect basis. That, however, was not the situation.

61. [196]

    Firstly, it must be recalled that it is the trial judge who was responsible for directing the jury on questions of law, including as to the elements of the offences, and not counsel. At the very outset of the trial the jury was told by the trial judge that he was the judge of the law, whilst factual matters were for the jury to decide. In opening its case the Crown Prosecutor correctly told the jury that, should there be a difference between what counsel said about the law and what his Honour said, the jury was obliged to accept the directions of the trial judge. That early information to the jury and his Honour’s direction to the jurors that he was the judge of the law is the necessary background to what came later.

62. [197]

    Secondly, although the Crown Prosecutor’s first submission on the subject was unfortunate, he sought to correct it at a later point, and properly referred the jury to the definition of consent with respect to what the Crown was required to prove, that is, that a person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse, the submission being that free and voluntary consent was not given by Ms A to any of these acts.

63. [198]

    Finally and importantly, the jury was given directions by the trial judge as to the meaning of consent, about which no complaint was made at trial, or before this Court. His Honour directed the jury as to the law to be applied to the evidence as follows:

64. [199]

    Having been so directed, there could have been no misunderstanding by jurors to the effect that, if Ms A was intoxicated, she could not consent to sexual intercourse, even assuming that the jury regarded the pharmacological evidence as particularly important.

65. [200]

    The Crown referred the jury to the evidence of Mr Farrar, but that evidence was but one aspect of the Crown case relevant to consent. The jury was enjoined by the Crown to “take all the evidence together”; its members knew from the directions given what was required as a matter of law if that evidence was to prove lack of consent to the criminal standard.

66. [201]

    The evidence that went to lack of consent was overwhelming, and in no way reliant upon the testimony of Mr Farrar.

67. [202]

    Ms A was taken from the street by Yasser-Basoglu at a time when her conversations and text messages with friends, and her interaction with Mr Singh, underlined her profound intoxication, and her inability to accurately perceive and process events around her. Mr H told the jury that when he spoke with her, at a time shortly before she was picked up by Yasser-Basoglu, he couldn’t understand what she said. Ms A’s text messages sent at about the same time are largely incomprehensible. Her interaction with Mr Singh demonstrated her profoundly impaired state.

68. [203]

    The circumstances in which the sexual acts occurred themselves overwhelmingly pointed to a clear lack of consent that would have been well understood by the three men who committed them.

69. [204]

    In a house with no electricity and little furniture, Ms A, an elegantly dressed young woman of just 18 years of age, was plied with alcohol and drugs by three much older men, whom she had never met before, and whom, it is clear from the text messages she sent to friends at about the time, she regarded with horror and repulsion, as “old” and “disgusting” “fuckhead[s]”. The jury might well have thought that any prospect of her freely and voluntarily consenting to sexual activity with such individuals was remote at best.

70. [205]

    Ms A’s clothes were so roughly ripped from her by the applicants as to leave distinct abrasions on her breasts. She was then subjected to multiple acts of unprotected sexual activity by these older, unknown men, who treated her roughly.

71. [206]

    Exhibit F, far from establishing that Ms A was a willing participant in this activity, showed just how unable she was to understand the events that were occurring, or to give free and voluntary consent to acts of sexual intercourse. The jury may well have thought, on viewing the footage that Irmak relied upon to establish that the complainant consented to these acts, that what Ms A needed was, at least, her bed and sleep or, perhaps, a hospital. She was not in control of her body or physical movements, and she clearly had very little comprehension of where she was or what was happening around and to her. That was further reflected by the disjointed nature of her evidence.

72. [207]

    Finally, Ms A made contemporaneous complaints of having been raped.

73. [208]

    In conclusion, there is no possibility that the trial miscarried with respect to the element of consent because of the use made by the Crown of the pharmacological evidence. That evidence was not as significant as the evidence of Ms A herself, who said she did not consent, and whose contemporaneous text messages underlined her horror, disgust and fear at the situation she found herself in, being “raped” by three men.

74. [209]

    This ground of appeal has not been made out and should be dismissed.

75. [210]

    Having reviewed the evidence as a whole, it is clear that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offences of which he was convicted. There has been no miscarriage of justice. His appeal should be dismissed.

76. [211]

    The applicant Dagdanasar pleads that the verdicts returned with respect to counts 1, 2, 3 and 8 were unreasonable. He further complains that a miscarriage of justice occurred with respect to the verdict returned for count 8, because of the failure of the trial judge to give a direction relating to the use that could properly be made of uncharged acts; and that a miscarriage of justice was occasioned by the use made of expert pharmacological evidence by the Crown in closing address.

77. [212]

    Dagdanasar advances his complaints concerning the purported unreasonableness of the jury’s verdict with respect to counts 1, 2 and 3 on the basis that the evidence was insufficient to establish that he was a participant in a joint criminal enterprise to sexually assault Ms A and, alternatively with respect to count 2, that there was no evidence of actual bodily harm, and guilty verdicts were not open.

78. [213]

    With respect to count 8, it is argued that there is an inconsistency between the verdicts returned with respect to counts 7 and 8, and no rational basis for there to have been a distinction drawn. If there was a doubt as to the applicant’s guilt in relation to count 7, such a doubt should have existed with respect to count 8. That the jury found him guilty of count 8 may be because there was no direction to the jury as to the use to be made of evidence of an uncharged act or acts, and there is a real danger that the jury found him guilty by substituting the evidence of an uncharged act with that relied upon for the charge.

79. [214]

    The final complaint concerns the use made by the Crown of the evidence of Mr Farrar, with submissions in the same terms as those advanced by Irmak.

80. [215]

    The Crown points to the evidence of an ongoing joint criminal enterprise in relation to counts 1, 2, and 3, and to the circumstantial evidence of injury to Ms A’s anus, to argue that the verdicts returned by the jury with respect to those counts were open. It is submitted that, properly analysed, there is no inconsistency between the verdicts returned in relation to count 7 and count 8, and there was a rational basis for the verdict of the jury, with no danger that the jury might have substituted an uncharged act of fellatio for the charged act of penile-vaginal intercourse.

81. [216]

    Proposed Grounds 1, 2 and 3: The jury’s verdicts with respect to counts 1, 2, and 3 necessarily point to its satisfaction to the requisite standard with proof that, at the material time, the applicant was a participant in a joint criminal enterprise with Irmak and Yasser-Basoglu to sexually assault Ms A and, with respect to count 2, of the additional element of recklessly occasioning actual bodily harm. For the reasons given above when addressing Irmak’s grounds 1 and 2, these grounds cannot be made out.

82. [217]

    Although Dagdanasar was not the individual who carried out the acts of intercourse reflected by counts 1, 2, and 3, his criminal liability was advanced on the basis of his participation in a joint criminal enterprise to have sexual intercourse with Ms A without her consent, knowing she did not consent, and when in company with each other, with foresight that some bodily harm might be recklessly occasioned. His participation in that enterprise was well open to be inferred on the basis of the evidence at trial.

83. [218]

    On Ms A’s evidence, the applicant was present in the lounge area of the Crestview Drive premises when she was brought there by Yasser-Basoglu. He remained with Irmak and Yasser-Basoglu as each had sexual intercourse with Ms A in that area of the house. That activity occurred in circumstances where, as soon as Ms A was brought to the house, she was encouraged by all three men to drink a strong drink that she thought had spirits in it (and which, inferentially, had GHB as well as alcohol), and administered methylamphetamine by Dagdanasar. Ms A gave evidence that it was the older man who put the pipe with white stuff in it to her mouth so that she inhaled it, leaving her feeling dizzy and “spaced out”. It was well open to the jury to conclude that Ms A was given intoxicants to make her less resistant to sexual activity.

84. [219]

    Immediately after she was given the methylamphetamine by Dagdanasar, who was physically next to the complainant, Irmak told her to come to him where he sat about a metre or two away. She did so, and was then subject to vaginal and anal intercourse by Irmak. When that was occurring, Dagdanasar was present and watching. Ms A gave this evidence on that point:

85. [220]

    Although the applicant complains in this Court that Ms A may have been mistaken as to which of the men commented upon her “drooling”, that possibility was not raised with her in her evidence at trial. It is evident from the complainant’s testimony at trial that she was clear that the man that made that comment was the older man. The evidence was that Dagdanasar was older than the other two men, something that would have been obvious to the jury.

86. [221]

    After those acts by Irmak the complainant deposed that she was given more drugs, and all three men commented on the effect of the drug, “this stuff makes you so horny” and “we’re all so horny”. That evidence is indicative of a continuing joint criminal enterprise to sexually assault Ms A.

87. [222]

    There was no evidence that the older man left the area when the next sexual act took place, with Yasser-Basoglu inserting his penis into Ms A’s mouth, and the evidence of the crime scene officer established that there was no other furnished and useable area of the house than the location at which these acts occurred. Exhibit F, showing some of the sexual acts and all three men present, Dagdanasar operating the camera on Irmak’s mobile phone and speaking from time to time, further supports the continuing nature of the enterprise.

88. [223]

    It was open to the jury to conclude that, from the time when Ms A was brought into the house by Yasser-Basoglu it was the joint intention of the three men present to use her sexually, being well aware that she did not consent to sexual activity with any of them. The applicant assisted his co-accused to that end by administering drugs to Ms A. On the evidence, he was present during the acts of intercourse the subject of counts 1, 2, and 3. The evidence was readily sufficient to establish that Dagdanasar was a participant in the joint criminal enterprise to sexually assault Ms A recklessly occasioning harm to her.

89. [224]

    As to the question of actual bodily harm with respect to count 2, that has been addressed when determining the corresponding ground of appeal advanced by Irmak.

90. [225]

    Leave should be granted to advance grounds 1, 2 and 3, but they should be dismissed.

91. [226]

    Proposed Grounds 4 and 5: The applicant submits that there was no rational basis for the differing verdicts returned with respect to count 8 and count 7, and he should have been acquitted of count 8 in common with count 7. To some extent this argument is addressed when dealing with Irmak’s complaint of his conviction with respect to count 3, and his contention that the verdicts returned for counts 4 – 7 were inconsistent with that returned for count 3.

92. [227]

    As earlier noted, there is an obvious and rational basis for the verdict of guilty to count 8, but a verdict of not guilty of count 7, and that is in the uncertain state of the evidence as to the passage of time between the acts the subjects of those counts, and the continuing presence of Irmak and Yasser-Basoglu.

93. [228]

    Count 8 occurred chronologically earlier than count 7 (as the Crown case went to the jury), and there was a period of time of uncertain length between the two acts. On the evidence of the complainant, count 8 occurred after she returned from the upstairs bedroom where Yasser-Basoglu had taken her after putting her in the shower. Ms A said that she could not find her dress and put on a blue jacket she was given after descending the stairs to the furnished part of the house.

94. [229]

    She sat down on the lounge. All three men were present. Ms A told the jury that Dagdanasar unzipped the blue jacket, exposing her breasts, which he touched and “grabbed”. Yasser-Basoglu reached over and bit her breast. The complainant next recalled laying on the lounge on which she had been sitting, and Dagdanasar removing her underwear. He put his flaccid penis in her mouth (an act which, as the Crown closed its case, was not charged). He then manoeuvred her body so that she was astride him and had penile-vaginal intercourse with her, that being count 8. Forensic evidence established that DNA consistent with that of the applicant was found on a high vaginal swab taken from the complainant when she was examined by Dr Pisani.

95. [230]

    On that evidence, it was open to the jury to conclude that those events took place in the presence of all three men, in a relatively short time frame, as a continuing course of events, commencing when Ms A came downstairs, and was wearing the blue jacket, and that it concluded when Dagdanasar had penile-vaginal intercourse with her. The verdict of guilty was thus properly open.

96. [231]

    Count 7, by contrast, appears to have happened after the passage of time, and perhaps after the point at which both Irmak and Yasser-Basoglu had left the house. Ms A told the jury that she had no sense of the ordinary passage of time, and “it kind of felt like it was a really long time” between the incident the subject of count 8 and that the subject of count 7, and her memory of events around this time was of “short visions”.

97. [232]

    She described the “next incident” involving the “oldest guy” when he forcefully put his penis in her mouth, tearing the frenulum. Ms A said that although she thought she remembered there being other people in the room, she was not sure who or how many others may have been present.

98. [233]

    There is a difference to be drawn between Ms A’s evidence concerning count 8, and that concerning count 7. She described the events the subject of count 8 as part of a course of connected activities, commencing when she sat down on the lounge wearing the blue jacket, after which the applicant and Yasser-Basoglu grabbed at her breasts, and the applicant penetrated her vagina with his penis. By contrast, the complainant’s evidence with respect to count 7 placed that incident in isolation, seemingly after what could have been the passage of a significant period of time. Her evidence as to the possible presence of the other two men was less than clear, and likely to be such as gave rise to a doubt about that aspect of the matter.

99. [234]

    There is no irrational inconsistency in the differing verdicts between counts 7 and 8.

100. [235]

     As to the argument concerning the trial judge’s “failure” to direct the jury as to the use to be made of uncharged acts, the first observation to make is that his Honour was not asked to give a direction along those lines. Indeed, the position was rather to the contrary, with all three counsel suggesting it was preferable that no direction be given to the jury on that subject, and that his Honour “rather than underline it” “simply not go to that”.

101. [236]

     That of itself suggests that those involved in the trial and able to see the effect of evidence on the jury did not regard it as necessary or even desirable that the trial judge say something to the jury about that subject. That can be viewed as a sensible forensic decision, since there was only one uncharged act referred to in Ms A’s evidence, that being the act of fellatio that prefaced the penile-vaginal intercourse charged as count 8, and there was no real risk that the jury would treat that evidence as anything other than evidence that provided an account of the circumstances surrounding the commission of the act charged as count 8.

102. [237]

     This was not a case where evidence of numerous other largely factually indistinguishable but uncharged acts was before the jury for a particular forensic reason, such as to explain why a complainant expressed no surprise at a sexual act occurring; and where there could have been a danger of the jury substituting an uncharged act for a charged act. The evidence of oral intercourse preceding count 8 was separate to and distinguishable from the charged acts, and there was no real prospect that the jury might have substituted one for the other.

103. [238]

     This ground has not been made out. The Court would grant leave to advance it, but it should be dismissed.

104. [239]

     Proposed Ground 6: Although articulated as a complaint about the admission of expert opinion into evidence, and the use made of it by the Crown, the applicant, like Irmak, abandoned that part of the ground relating to the admission of the evidence of Mr Farrar, and focused on the use the evidence was said to have been put to.

105. [240]

     That complaint has been considered with respect to Irmak’s corresponding complaint. As with Irmak, leave should be granted to advance the ground, but it must be dismissed.

106. [241]

     The conviction appeals have not been made good and each should be dismissed.

107. [242]

     Both applicants also seek leave to appeal against the sentences imposed upon them for the offences referred to at [2] above

108. [243]

     Irmak was sentenced to an aggregate term of imprisonment of 26 years commencing on 16 February 2017 and expiring on 15 February 2043, with a non-parole period of 18 years that expires on 15 February 2035. Dagdanasar was sentenced to an aggregate term of imprisonment of 24 years commencing on 16 November 2016 and expiring on 15 November 2040 with a non-parole period of 16 years that expires on 15 November 2032.

109. [244]

     It is not necessary to repeat the analysis of the evidence already undertaken for the purposes of determining the conviction appeals. It is only necessary to reiterate that both applicants maintained that:

     1. (1)

        Ms A’s evidence should not be accepted;

     2. (2)

        she had consented to the sexual activity;

     3. (3)

        she had voluntarily taken ice;

     4. (4)

        she was not as intoxicated as she had maintained; and

     5. (5)

        she had not been truthful in terms of her own consumption of drugs and alcohol.

110. [245]

     Ms A was cross-examined extensively. She was required to give evidence over 5 days, during which she was asked by counsel for Irmak to watch the video of her being sexually assaulted (Ex. F) which, as the sentencing judge observed, and as we have noted above, caused her distress.

111. [246]

     It was suggested to Ms A on behalf of Irmak that she had encouraged him to engage in sexual intercourse. It was put to Ms A on behalf of Dagdanasar that he had not been involved in any sexual activity with her at any time while the other two men were in the house. It was put to her that he had sex with her at around 8am with her consent. His earlier involvement was said to be limited to filming the sexual activity at around 5.15am.

112. [247]

     For ease of reference below is a table with a brief description of the offences (already described above), the assessment of the gravity of the crimes made by the trial judge (referred to as such for consistency), and the indicative sentences announced by him. Although the appeal lies only from the aggregate sentence, and not the indicative sentences, the indicative sentences can be a guide as to whether error is established in the aggregate sentence: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40] per R A Hulme J, Hoeben CJ at CL and Adamson J agreeing; Kirby v R [2021] NSWCCA 162 at [45] per Beech-Jones J, Harrison and Cavanagh JJ agreeing.

113. [248]

     Irmak seeks leave to appeal against his sentence on two grounds being:

     1. (1)

        Ground 4 – the sentencing judge erred with respect to objective seriousness by:

     2. (2)

        Ground 5 - the aggregate sentence is manifestly excessive.

114. [249]

     Dagdanasar seeks leave to appeal on different grounds being:

     1. (1)

        Ground 8: The sentencing judge erred by making findings of fact which were not open including:

115. [250]

     As Dagdanasar’s appeal is limited to a challenge to a number of factual findings made by the sentencing judge, we will deal with his appeal first.

116. [251]

     The submissions of the applicant Dagdanasar were brief and to the point. They address each of the three alleged factual errors. He submits that:

     1. (1)

        the evidence was not capable of establishing beyond reasonable doubt that he was apprised of Ms A having ingested GHB. If Ms A was given GHB the evidence does not support any finding that he was aware of it or was involved in it. He submits that this finding was important as it was a significantly aggravating feature on sentence;

     2. (2)

        in light of the acquittal in respect of count 7 and the Crown not seeking to establish that the first act of fellatio alleged against “the older man” (Dagdanasar) was proved beyond reasonable doubt, the sentencing judge should not have had regard to the fact of the commission of this very serious act in assessing the objective seriousness of count 8; and

     3. (3)

        the sentencing judge’s finding of anal injury based on the evidence of Dr Pisani was not open in circumstances in which the Crown did not rely on any such injury for the purposes of count 2 and it could have happened during the anal intercourse upstairs perpetrated by Yasser-Basoglu in which Dagdanasar had no involvement and for which he was not convicted.

117. [252]

     Dagdanasar submits that each of the erroneous findings impacted upon the “qualitative assessments of the objective seriousness … and his Honour’s conclusions in that regard”.

118. [253]

     The finding of the trial judge in respect of GHB is as follows:

119. [254]

     As the Crown submits, Dagdanasar’s submissions constitute a reformulation of the submission made at trial that there was no evidence that GHB was administered to Ms A at the premises at all (that is, by any of the three offenders).

120. [255]

     At trial, both applicants submitted that there was a reasonable possibility that Ms A had ingested a large dose of the drug at the after party. Indeed, a great deal of the cross-examination of the complainant at trial by counsel for Dagdanasar went to attempt to establish that she was a regular and experienced drug user. Dagdanasar limits his complaint in this Court to the proposition that the evidence does not establish that he was apprised of Ms A having ingested GHB (and thus could not have been involved in the administration of the drug to her) rather than an assertion that she did not ingest GHB at the premises.

121. [256]

     The Crown identifies a number of factors in submitting that the only rational inference was that both applicants gave Ms A drinks contaminated with GHB without her knowledge, as follows:

122. [257]

     The finding that Ms A must have ingested GHB at the premises was supported by the evidence of Mr Farrar, [1] the expert toxicologist relied on by the Crown. According to Mr Farrar, if she had consumed GHB to the quantity required to produce the test result (more than 50 mg/L at 9:55pm) in one dose, she would have been in a coma. As she was not, the GHB must have been administered in a number of smaller doses.

123. [258]

     Further, having regard to the period during which GHB is detectable, that is, its half-life, it must be that the GHB was administered while she was at the premises and up to about 4:00pm. This only leaves two alternatives, being that she was administering GHB to herself whilst she was at the premises, or the persons at the premises were administering the GHB to her.

124. [259]

     In his remarks on sentence, the trial judge found that the offenders (that is, including Dagdanasar) put GHB in her drinks without her knowledge.

125. [260]

     This finding was consistent with the evidence of Ms A. All three men were present and “egging [her] on to skull” the drink they gave her shortly after she arrived. Having regard to Mr Farrar’s evidence, she must have been given a number of drinks containing GHB. There is no evidence of her being given any drinks whilst upstairs alone with Yasser-Basoglu.

126. [261]

     Further, there is compelling evidence which links Dagdanasar directly to the provision of GHB. The evidence of Mr Farrar suggests that Ms A must have been given a dose of GHB at some time during the afternoon, perhaps close to 4:00pm. Only Dagdanasar was present with Ms A in the premises during that period. Unless Ms A was giving herself GHB – the possibility of which must, on all the evidence, be discounted – it must be that Dagdanasar personally administered GHB to her at some time.

127. [262]

     The fact that Dagdanasar was in the house alone with Ms A during the afternoon is supported by Irmak receiving a text “we’re have power now” at 2.55pm which – inferentially – must have been sent by Dagdanasar.

128. [263]

     Further, Ms A’s text exchange at 3.33pm is particularly significant, both in terms of its timing and content:

129. [264]

     More than 11 hours after she was taken to the premises someone was trying to give her more drinks; that person could only have been Dagdanasar as he was the only one at the premises at that time. Indeed, having regard to the toxicological evidence, it must be that Dagdanasar succeeded in giving her at least one more drink laced with GHB late in the afternoon.

130. [265]

     There is no error in the finding that Dagdanasar intoxicated Ms A by putting GHB in her drink without her knowledge.

131. [266]

     In respect of count 8 the trial judge found:

132. [267]

     The Crown did not rely on the fact of the act of fellatio being committed immediately prior to the intercourse as a separate count. This does not mean that it did not occur and that the trial judge was not entitled to accept that it occurred, as part of the surrounding events.

133. [268]

     The trial judge was entitled to accept that it happened having regard to Ms A’s evidence. Further, a finding that it occurred in the remarks on sentence does not lead to the conclusion that Dagdanasar was being sentenced for uncharged acts. The act of fellatio formed part of the context in which the offending giving rise to count 8 occurred. To the extent that the act of fellatio may be viewed as uncharged conduct it may be used as part of the assessment of the offending in the context in which it took place (see LN v R [2020] NSWCCA 131).

134. [269]

     In LN v R, Basten JA stated (with the agreement of R A Hulme J) at [54]:

135. [270]

     There is nothing in the remarks on sentence which would lead to the conclusion that an additional penalty was imposed on Dagdanasar because he committed an act of fellatio prior to the offence of which he was convicted. However, it formed part of the context and circumstances of the offending giving rise to count 8, and was properly referred to by the trial judge in his remarks on sentence.

136. [271]

     Further, there appears to be some confusion or inconsistency between the identification of the alleged error in the ground of appeal and Dagdanasar’s submissions. The error identified in the notice of appeal is only in relation to paragraph 75 of the sentencing judgment which relates only to count 8. In the written submissions Dagdanasar states:

137. [272]

     For the reasons already identified in respect of the conviction appeal in respect of count 8, acquittal in respect of count 7 was not inconsistent with the conviction in respect of count 8. The acts giving rise to count 7 occurred at a later time.

138. [273]

     It must be that the jury accepted Ms A’s account of the events constituting the offending reflected by count 8 and it was open to the trial judge to be satisfied beyond reasonable doubt that those events happened. Those events included the act of fellatio by Dagdanasar immediately prior to the act of intercourse giving rise to count 8. Nothing in the remarks on sentence tends to suggest either, that the trial judge treated the act of fellatio as a further aggravating feature of the offending giving rise to count 8, or that any additional penalty was imposed for this uncharged act.

139. [274]

     Dagdanasar has not established error in respect of his second challenge to the factual findings.

140. [275]

     In respect to the injuries sustained by Ms A, the trial judge said at [49]-[50]:

141. [276]

     The submission that the trial judge erred in finding anal injury when the Crown did not rely on such an injury for the purposes of the s 61JA offence is to the same effect as has been raised and considered in the conviction appeal in respect of Count 2.

142. [277]

     For the reasons already identified when dealing with the conviction appeal, there was sufficient evidence for the trial judge to be satisfied beyond a reasonable doubt that the anal injury occurred during the act of intercourse downstairs (the subject of Count 2) whilst Dagdanasar was present, and not during the later act of anal intercourse perpetrated upstairs by Yasser-Basoglu (whilst Dagdanasar was not present and for which he was not convicted).

143. [278]

     Dagdanasar has not established the third alleged error on sentence.

144. [279]

     Dagdanasar has not established error in any of the factual findings which he seeks to challenge. No other ground of appeal has been advanced.

145. [280]

     However, following her oral submissions on the factual findings, Counsel for Dagdanasar, said:

146. [281]

     We have taken the oral submission of counsel for Dagdanasar as meaning that, should Irmak succeed on his sentence appeal, with a lesser aggregate sentence being imposed, then a consequential parity issue would arise for consideration with respect to Dagdanasar. That submission would only come into play if Irmak succeeds with his sentence appeal. If, however, counsel for Dagdanasar meant to adopt the submissions (and grounds) advanced for Irmak on the sentence appeal, then such an argument (if permissible without Dagdanasar seeking to amend his grounds of appeal) would be totally dependent upon the outcome of Irmak’s sentence appeal. Whichever construction is adopted with respect to the submission made for Dagdanasar, the argument goes nowhere unless Irmak succeeds with his sentence appeal and a lesser aggregate sentence is passed.

147. [282]

     Irmak submits that either the trial judge erred in finding that the offending was in the upper mid-range or alternatively that he erred in passing a sentence which failed to reflect that finding.

148. [283]

     The findings to which this ground relates are identified by Irmak as being at [134] of the sentence remarks as follows:

149. [284]

     The question which arises under this ground of appeal is whether the particular characterisation which the sentencing judge gave to the circumstances of the offending was open (see Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ, Simpson J agreeing).

150. [285]

     As Simpson J (as her Honour then was) observed in Mulato v R at [46], the assessment of the objective seriousness of an offence is only reviewable by this Court on the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40. It is not the function of this Court to substitute its own view of objective seriousness.

151. [286]

     In Magro v R [2020] NSWCCA 25, Gleeson JA (with R A Hulme and Button JJ agreeing) observed at [29]:

152. [287]

     Irmak submits that it was necessary for the trial judge to assess the objective seriousness of the offending against other examples of offending of this type (see R v Campbell [2014] NSWCCA 102 at [29] per Simpson J, Hall J agreeing).

153. [288]

     In respect of the offence under s 61JA(1) (Count 2), Irmak submits that:

     1. (1)

        the only particularised conduct relied upon by the Crown as an element of the offending under s 61JA(1)(c) was the infliction of actual bodily harm. The Crown did not rely on the alternative grounds such as threatened or actual use of a weapon or deprivation of liberty;

     2. (2)

        further, as found by the sentencing judge at [137], the actual bodily harm was inflicted recklessly rather than intentionally;

     3. (3)

        the actual bodily harm was limited being bruising to the inner thighs and tenderness to the anus, highlighting paras [49]-[50] of the sentencing judgment;

     4. (4)

        as s 61JA contemplates that there may be cases where there are more than three offenders acting in company, it must be that in assessing the range of objective seriousness, there may be cases which are more serious by reason of the involvement of, for example, four or more persons; and

     5. (5)

        having regard to the factors identified, the offending under s 61JA would not fall in the range assessed by the sentencing judge.

154. [289]

     Similarly, in respect of the offending under s 61J (5 counts), Irmak points to additional features (which might support a finding in the upper mid-range) which are not present in this matter, such as offending which occurred inside the victim’s home, against a child victim, in the presence of multiple victims on the instigation of the specific offender or including a threat to kill.

155. [290]

     Irmak submits that none of those factors are present in this matter and refers to other cases with one or other of those factors by way of comparison.

156. [291]

     The Crown submits that no error of the House v King type has been established. No error has been demonstrated in the evaluative exercise undertaken by the sentencing judge. Pointing to different outcomes in different cases does not establish error as individual factors may be susceptible to differing views.

157. [292]

     In particular, the Crown submits:

Determination

1. [293]

   The essential point made by Irmak is that the sentence imposed must be viewed as at the very outer (high) end of any range for this type of offending. The finding as to objective seriousness is said not to have been open but, even if it was, such a sentence is not reflective of that finding. It is not reflective of the actual finding of objective seriousness on a comparative basis and is significantly higher than the sentences imposed in what Irmak suggests are similar types of offending in other cases.

2. [294]

   Irmak does not challenge any particular finding of fact made by the trial judge. His approach is to identify some of the features of the offending, such as, he submits, limited injuries, lack of violence, no use of weapons and no threats, and then to undertake a comparative analysis with reference to other cases.

3. [295]

   It is thus appropriate at this point that we say something about the other cases relied upon by Irmak in support of both of his grounds of appeal on sentence. Those cases are said by Irmak to be relevant to all of the findings on objective seriousness, the complaint that the sentence did not reflect that finding in any event, and the manifest excess ground.

4. [296]

   At the outset, it must be emphasised that caution should always be exercised in undertaking a comparative analysis for the purposes of determining whether there has been error. All cases are different. As is highlighted in this matter, there may be particular factors which bear upon objective seriousness that are unusual or almost unique to the offending. There may be a particular feature which leads the sentencing judge to elevate the finding to a higher level than it might otherwise have been assessed. The task of the sentencing judge is to evaluate all of the factors as they impact on the particular offending, not to identify aggravating features which were not present.

5. [297]

   Here, the trial judge noted the submission on behalf of both applicants that the conduct fell well below the mid-range but, concluded that the offending was at an exceptionally grave level. In doing so, his Honour made specific reference to Haines v R [2012] NSWCCA 238 at [54].

6. [298]

   Irmak submits that Haines was an inappropriate comparator because the offending occurred in such different circumstances (meaning the type and nature of the offending) being, according to Irmak, comparatively more serious.

7. [299]

   Haines was a member of a group of men who forcibly entered a house occupied by five international students. One of the co-offenders produced a knife and threatened to kill one of the students. Haines punched the two male students within the house. One victim was hit in the head with a beer bottle. After locating two more occupants and robbing them, they were ordered to stay in a particular room with the two male occupants.

8. [300]

   Haines then forced his way into another bedroom where the remaining female occupant was hiding. He pulled her pyjamas down and performed numerous sexual acts including penile-vaginal intercourse on a number of occasions. At the time, she was a virgin. He forced her to perform fellatio on him. He also had penile-anal intercourse with her. Another co-offender also entered the same room and forced her to perform fellatio on him while Haines was having vaginal intercourse with her. The event, the subject of all of the offending, lasted an hour.

9. [301]

   Haines was sentenced to a term of imprisonment of 25 years with a non-parole period of 18 years. The sentence reflected a 15% discount on account of the plea of guilty. Haines had a lengthy criminal history including an earlier conviction for aggravated sexual assault.

10. [302]

    Irmak submits that in placing his offending at the same point in the range as Haines, the sentencing judge has erred.

11. [303]

    Further Irmak calls to his aid the lesser sentences imposed, in particular in Weatherall v R [2013] NSWCCA 282, King v R [2010] NSWCCA 33, Qoro v R [2008] NSWCCA 220, R v MAK; R v MSK; R v MMK [2005] NSWCCA 369 and Ford v R [2016] NSWCCA 69 in support of his submission that the sentence did not reflect the finding of objective seriousness in the upper mid-range.

12. [304]

    We will return to these cases when considering the manifest excess ground but it may be said in the context of the ground relating to objective seriousness that it would be a very difficult task to compare and contrast the reasons for findings of differing levels of objective seriousness in different cases and then try and distil from the reasoning in a particular case why a finding at a particular level might have been different from the level found by the trial judge in this matter.

13. [305]

    Having said that, we consider that, having regard to all of the circumstances of the offending, the findings as to objective seriousness were well open to the sentencing judge.

14. [306]

    The offending in this matter may be different from the offending in Haines but the submission that it could not be considered at the same broad level of objective seriousness fails to have regard to a number of features which make this offending particularly abhorrent, depraved and disturbing.

15. [307]

    In assessing objective seriousness, it is appropriate to view the offending in the context in which it took place. This may include matters which are adverse to the offender provided that the sentencing court is satisfied of those matters beyond a reasonable doubt.

16. [308]

    Further, as has been most recently stated in Kelley v R [2021] NSWCCA 173 the concepts of moral culpability and objective seriousness overlap. As Bell P observed at [38] (Rothman and Bellew JJ agreeing):

17. [309]

    The trial judge made findings as to a number of aggravating features all of which were open. His Honour said at [140]:

18. [310]

    It is only necessary to provide a summary (in addition to the observations already made in the conviction appeal) of the circumstances surrounding and the context in which the offending occurred (all of which were considered by the trial judge) to understand why the finding of objective seriousness was open.

19. [311]

    Having been picked up off the street by a stranger when she was in an intoxicated state following her Year 12 formal, Ms A was taken to an unfamiliar address/house which was lit only by candles and sparsely furnished. She found herself at the mercy of three older men who made her inhale methylamphetamine by holding the pipe to her mouth (more than once) and provided her with drinks which must have been laced with GHB, not just once but on a number of different occasions over an 12 hour period.

20. [312]

    The quantity of both methylamphetamine and GHB that she was made to ingest must have been significant, having regard to the results of the testing that was undertaken at 9:55pm. The only possible explanation for this conduct was to render an already intoxicated young woman completely compliant to the applicants’ wishes. As such their offending had an element of planning or organisation to it.

21. [313]

    They took it in turns to perform various sexual acts on her whilst she was in no state to resist, over a very lengthy period of time. The effect of the drugs must have been to render Ms A compliant even to the repetitive rough and painful conduct which constituted the offending.

22. [314]

    The giving of drugs to a victim for the purposes of forcing sex upon her in the knowledge that she could not have been consenting is a significantly aggravating feature of this type of offending. Further, she was given GHB in such a quantity that if it was given in one dose she would have slipped into a coma. This conduct was inherently dangerous, and placed Ms A at further risk. Irmak may be correct in suggesting that there was no associated violence (as was present in Haines) but the applicants achieved their aim through other means. In any event, it must be recognised that all sexual assaults involve an element of inherent violence, involving as they do the touching of another without consent, so as to override the victim’s right to personal self-determination. In our view, the forced ingestion of drugs for the purposes of ensuring or encouraging compliance with unwanted sexual acts is something which significantly elevates the seriousness of the offending.

23. [315]

    During some of the sexual activity, Ms A was filmed. Contrary to the contention of Irmak that the videos somehow proved her consent, it shows an exposed young woman barely able to hold her head up, under the complete control of older men whom she does not know, being manipulated into positions at their will, with the men saying things to each other such as “take a ticket bro” and “do her doggie bro, turn her over”. Such conduct must have had an additional degrading effect. Its callousness should be plain even on that brief description.

24. [316]

    The recordings are of course just a sample of that which occurred. The trial judge was unable to make any specific finding as to which count any of the recordings related.

25. [317]

    The applicants and the third assailant took it in turns to perform sexual acts upon Ms A, knowing that she was not consenting. The language used during the recorded assaults is indicative of knowledge that Ms A was so impaired that they could move her into positions at will and treat her as they pleased. This is borne out by Ms A’s own recollection of what was happening whilst at least one of the recordings was being made (set out above, and specifically referred to by the trial judge):

26. [318]

    Other language used during the recording also demonstrates that the applicants well knew that what they were doing was quite wrong.

27. [319]

    Ms A was at the Glenwood house for a period in excess of 12 hours. Although Ms A’s recollection of time is uncertain, her text messages reveal her distressed state of mind, her anxiety, fear and sense of desperation.

28. [320]

    All of the toxicological evidence, the evidence of Ms A, the text messages and the conversations between Dagdanasar and Irmak during the afternoon suggest that they were intending to further provide her with drugs and alcohol again for the same benefit to them, relevant to the applicant’s complete lack of insight, and prospects of rehabilitation.

29. [321]

    This case is different from Haines but the absence of some of the aggravating features in Haines does not render it an inapt comparator when regard is had to the particular features in this matter which were not present in Haines.

30. [322]

    Further, the mid-range is a broad range. Describing an offence as upper mid-range does not mean that the level of objective seriousness is identical to another case similarly described. It simply means that it falls within that general part of the range.

31. [323]

    As Basten JA (Beazley P and Wilson J agreeing) observed in Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [82]:

32. [324]

    The cases identified by Irmak necessarily do not lead to the conclusion that the trial judge erred and his finding was not open. Indeed, we do not accept the principal submission advanced by Irmak that a comparison of other cases demonstrates that the finding of objective seriousness was not open.

33. [325]

    Further for the reasons we have identified the sentence does not fail to reflect a finding in that range. In any event the sentences are a reflection of the synthesis of all objective and subjective circumstances and the application of all relevant sentencing principles.

34. [326]

    Irmak fails on Ground 4 of his appeal.

35. [327]

    Irmak contends that the trial judge erred by imposing a manifestly excessive sentence.

36. [328]

    In Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, the Court (per Gleeson CJ and Hayne J) said at [6]:

37. [329]

    Further, as Beech-Jones J (Harrison and Cavanagh JJ agreeing) recently said in Kirby v R at [45]:

38. [330]

    The applicant must demonstrate that the sentence was “unreasonable or plainly unjust”: Dinsdale at [6]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (per Gleeson CJ, Gummow, Hayne and Callinan JJ).

39. [331]

    The sentence imposed upon Irmak was a stern sentence but the use of such language to describe a sentence does not render the sentence plainly unjust.

40. [332]

    Further, it is not sufficient that this Court might have exercised the sentencing discretion in a manner different to the approach taken by the sentencing judge, even if that be so (see Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

41. [333]

    Other cases can be considered for the purposes of ensuring consistency in sentencing, but even though other cases might suggest a range, the sentence which might be imposed by a sentencing judge in the exercise of the sentencing discretion is not determined by that range (see Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41] per French CJ, Hayne, Kiefel and Bell JJ).

42. [334]

    Irmak identifies Haines as the outer or upper end of the range and contrasts his offending with that of Haines. He submits that despite what he says are the quite significant differences (Haines being said to be more serious) Haines received a lesser sentence than Irmak.

43. [335]

    An aggregate sentence of 25 years was imposed on the offender in Haines, but that was after a discount of 15% on account of a plea of guilty.

44. [336]

    However, sentencing involves a process of instinctive synthesis, having regard to both the objective and subjective features. Whatever might be said about any differences in objective seriousness, Irmak’s subjective case was particularly poor.

45. [337]

    Irmak calls to his aid the lesser sentences imposed, in particular in Weatherall v R, King v R and Qoro v R (all related cases) in support of his claim of manifest excess.

46. [338]

    Weatherall was the leader of a group of men who prevented the complainant from leaving a house for the purposes of having sex with her. The complainant was a drug addict who had attended the house on a drug-related purpose. Weatherall took the complainant into a room and forced her to perform fellatio on him and was present when another offender did the same thing. The sentencing judge accepted that the offending was not pre-planned.

47. [339]

    Weatherall was convicted of two offences of aggravated sexual assault in company contrary to s 61JA. The circumstances of aggravation were the deprivation of liberty before the commission of the offence. He received a sentence of 15 years with a non-parole period of 10 years. He was 31 at the time of the offending. He had a criminal history, but not in the 7 years prior to the commission of the offence. The sentencing judge found that he had a relatively strong subjective case in that he was an Aboriginal offender with a disadvantaged background. He had reasonable prospects of rehabilitation and the sentencing judge accepted that there were special circumstances.

48. [340]

    King was convicted of one offence of aggravated sexual assault in company contrary to s 61JA, again, with the aggravating feature being deprivation of liberty. He was sentenced to 13 years in prison with a non-parole period of 8 years. Again, the sentencing judge accepted that the offending was not planned or organised criminal activity. The complainant was forced to perform fellatio. King had a limited criminal history. The sentencing judge considered that he had guarded prospects of rehabilitation but had regard to his dysfunctional background. Special circumstances were found.

49. [341]

    Qoro was convicted of one count of aggravated sexual assault in company, again, with deprivation of liberty being the aggravating feature contrary to s 61JA. He received a sentence of 14 years with a non-parole period of 10 years. Qoro had a moderate intellectual disability and ongoing psychotic symptoms. Less weight was given to general deterrence. The sentencing judge accepted that his time in custody would be more onerous. The offending involved the complainant being forced to perform fellatio on him whilst he was in company with another man.

50. [342]

    Irmak describes these three cases as similar cases. In our view there are significant differences. Further, in R v MAK; R v MSK; R v MMK this Court suggested that the offenders had been treated leniently. Both MSK and MMK received sentences of 22 years. Ford v R is an inapt comparator as the offender was a child sex offender.

51. [343]

    As found by the trial judge, there were a number of aggravating features and no mitigating features in Irmak’s case. No submission was made before the sentencing judge that Irmak had any prospects of rehabilitation or that he had shown any remorse, and nor, we would suggest, could they have been. It is clear from the conduct of the trial that he continued to lack insight into the serious nature of his offending. That is not to suggest that he should be subject to additional punishment because of the way in which the trial was conducted, but it is unsurprising that no submission was made that Irmak had shown any remorse. The cross-examination was both needlessly protracted, and brutal, and is demonstrative of Irmak’s attitude to his victim, and complete lack of insight.

52. [344]

    The applicant was on conditional liberty at the time, an aggravating feature. General deterrence was an important factor and that was recognised by the trial judge. As found by the trial judge, Irmak’s criminal history disentitled him to leniency.

53. [345]

    In considering an appeal for several offences on grounds of manifest excess, it is necessary to have regard to the totality of the criminality involved. There is no suggestion that his Honour failed to properly apply the principle of totality. The aggregate sentence of imprisonment imposed upon Irmak was substantial, but it was well open to the sentencing judge in the appalling circumstances of this case. The aggregate sentence was reasonably proportionate to the high objective gravity of Irmak’s offences and reflected the magnitude of his total criminality arising from this very grave course of criminal conduct.

54. [346]

    In our view, Irmak has not established that the aggregate sentence imposed on him was manifestly excessive. He fails on Ground 5.

55. [347]

    We would grant leave to appeal but dismiss both appeals.

56. [348]

    The orders of the Court are:

    1. (1)

       With respect to the applicant Irmak:

    2. (2)

       With respect to the applicant Dagdanasar: