R V Bilal Skaf, Legal Studies Research Report

Preface: Due to space constraints I will be focusing on the actions taken by and taken against BILAL Skaf solely as opposed to his brother MOHAMMED Skaf. In addition, I will be concentrating on the events which the charges were given rise to on 12 August 2000 and as opposed to 2 separate cases rape cases which Bilal Skaf was also a belligerent for the month of August 2000. I will also be mentioning the recent appeal case in 2008 which reduced the sentences given for the crimes in 2006.

R v Bilal SKAF Legal citation of the case: Regina v Bilal Skaf; Regina v Mohammed Skaf [2006] NSWSC 394, 28 July 2006 AND amendment to this decision with the appeal: R v Skaf & Skaf [2008] NSWCCA 303, 17 December 2008 Outline the elements of the offence In terms of Actus Reus of committing the guilty and physical act of the crime, Bilal Skaf has been charged with aggravated sexual assault without consent and aggravated sexual intercourse without consent.

For the first offence the outline of the occurrence of events are as follows: On August 12, 2000 a 16-year-old girl accepted an offer from Mohammed Skaf to be driven to the city and picked up from her home, Mohammed Skaf had known the complainant for some time, although he had never told her his correct name: she knew him as ‘Sam’.

She was then taken to Greenacre’s Gosling Park where in which Bilal Skaf was the principal assailant in the attack.

He dragged the girl out of the car with the help of several men as she cried and screamed; he then proceeded to have sexual intercourse with her whilst she was being held down.

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After Bilal Skaf had finished this act, he allowed and encouraged another man who wished to engage with the woman and the man proceeded to have sexual intercourse with the female. This constitutes the second offence charged against Bilal Skaf as being there as an aider and abettor.

The first offence attracted a lengthier sentence than the second offence, in which his liability was accessorial rather than as a principal offender. However the second offence was also a very serious one, remembering that Bilal Skaf was the leader of the group. Additionally there are a number of aggravating factors to be taken into account in relation to Bilal Skaf under s21A of the Crimes (Sentencing Procedure) Act. The factors nclude that the offences involved both the actual and threatened use of violence; that they involved a series of criminal acts, and that they were part of a planned or organised criminal active, but perhaps most significantly is the emotional harm caused by the offence which was substantial, in the words of Matthews, AJ “given the terrifying and degrading behaviour of her assailants that night, the complainant’s life has since been adversely affected in almost every respect. Describe the factors that might have led to the criminal behaviour Bilal Skaf grew up in an underclass area led to a lack of motivation which resulted in a lack of education. Bilal Skaf grew up as the ‘man’ of the family due to his position as the first born son the family and his father being absent from home. This is important to note as Skaf was likely to avoid discipline when he ‘tests the limits’ which shapes his attitude to school where he flaunts the rules to an extent.

He was then expelled from his high school at the mere age of 14 years old, with a lack of school certificate consequently leading him to have a lack of any real career prospects and resulting in Skaf starting to acquire a criminal record and disregard for the law at a very young age. With a lack of a job, Skaf turned to the streets and there he sees he needs to attain respect from his peers, and to gain this respect he will do anything, including breaking the law leading to a shoplifting offence within several months.

Dr Leah Giarrtano who researched the case came to the conclusion and may be quoted as saying “that he possesses what is known as conduct disorder” where the rights of others are persistently violated a factor of great significance. Skaf’s situation was exacerbated when he became so unruly that his parents sent him to his home country of Lebanon for several months in hopes he would become more disciplined but this is likely not the case.

It can be assumed that women did enjoy the same freedoms within Lebanon as they did in Australia which is a very likely contributing factor for the manner in which Skaf committed his offences with such ease and without remorse. It is likely Skaf came to resent becoming sent to Lebanon and as result he became much more uncontrollable and as result believed he was the one who would ‘lead’ his group of friends in becoming the principal offender of future offenses. Outline the reporting and investigation of the crime:

The complainant identified Bilal Skaf as her principal assailant on February of the following year of the offence (2001). On 15 February 2001 the complainant identified Bilal Skaf in a crowd at Burwood Local Court as Sam’s brother (Sam being the name/alias she knew Mohammed Skaf by). On the day of 13 March 2001 a record of interview was conducted with Bilal Skaf in relation to the complainant’s allegations. He refused to answer any questions about the matter. However, he later asked to be re-interviewed, and on the day of 3 April 2001 a further record of interview took place.

The task force assigned to the offence had by then obtained records of mobile telephone use on the evening of 12 August 2000, which showed a number of calls between the mobile telephones belonging to Bilal and Mohammed Skaf within the period leading up to the assaults upon the complainant. Bilal Skaf sought to explain at his version of these phone calls, saying that his cousin Ali was using his, Bilal’s phone to talk to Mohammed. He claimed the next day Ali told him that after leaving Bilal’s house, he had gone to Gosling Park in his van and had sex there with a girl in the company of friends.

He relied on this alibi at trial. Detective Walsh gave evidence that Ali Skaf was 180 cm tall, different from that of Skaf, and did not have a scar above his left eyebrow (which the complainant had described her assailant as having a scar above his left eyebrow). Ali Skaf’s statement stated he denied ever having gone to Gosling Park or ever had sex with a woman at this park, along with denying he had ever visited Bilal Skaf’s house that night or told him he had had sex with a woman at the park. It is important to add that on 7 December 2000 the complainant was shown a photo board which contained a photo of Ali Skaf.

She did not identify anyone from that photo board. His alibi was inconsistent with the evidence of Ali Skaf. Bilal Skaf told police he did not speak to his brother that night at all except to hand over the phone to Ali. Yet telephone records indicated five calls by Bilal Skaf to Mohammed Skaf that night. There was also evidence, contrary to what Bilal Skaf told police, that Ali Skaf did have a mobile phone and that each of them had their respective numbers stored in each other’s phones. Furthermore, the complainant’s description of the offender did not match Ali Skaf.

The jury’s verdict shows that it rejected Bilal’s Skaf’s account and version of events. Explain the role of the courts Due to the severity of the offence, and the nature in which the offense was very much in one of the worst categories of sexual assault the offence was heard in the Supreme Court of NSW; with this court constituted under Supreme Court Act 1970 (NSW). Obviously the court’s role was to achieve justice for the complainant but it is important, especially in a case of this severity, that the rights of the defendant are not overlooked merely due to the widespread publicity of the case.

This became the matter in two occasions: 1. When the belligerent Skaf was granted leave to appeal the sentence passed in the decision of Regina v Bilal Skaf [2006] NSWSC 394 in which those sentences were quashed by the Court of Criminal Appeal (R v Skaf & Skaf [2008] NSWCCA 303) reducing his sentence in its entirety (due to his current sentences partially being carried out concurrently with each other) by two years on parole. Outline the role of legal representation

The Australian legal system requires a defendant a right to a fair trial which includes for an accused to be provided with adequate legal representation regardless of the accused charges, with which Skaf obtained despite backlash and severity of the charges are perceived by the public. As Bilal Skaf refused to give evidence at every single trial he attended, Mr Peter Zahra SC was counsel for Skaf and questioned on behalf of Skaf.

In one example, Mr Zahra on behalf of Bilal Skaf, “challenged the complainant’s identification of him [Bilal Skaf] as her [complainant] principal assailant” which provided a good basis of defence for Skaf as he was lacking in a steady and supported case due to his alibi being completely inadequate and denied by the jury. Later, as the jury found the defendant Skaf was guilty on all counts, this indicates it found against this issue.

Further, as it was looking likely that it would be impossible for Skaf to be acquitted of his charges under any line of argument pursued by the defence the last thing which could be resorted to as a fair trial had been conducted was to argue for the sentence. Skaf’s lawyer Mr Zahra asked Justice Mathews to at least consider the lengthy sentence already being served by Skaf and take into account the circumstances of which Skaf dwells in “very dangerous” conditions in prisons as a supposed loner – when deciding upon his sentence for the August 12, 2000 sexual assaults.

Identify the plea: Not guilty. Discuss the factors that affect the sentencing decision A range of factors were taken into serious consideration for the jury when deciding upon their verdict for the events of the night of 12 August, 2000. Firstly, it must be stated that the jury had to be sure to disregard previous convictions for rapes on the 10th and 30th of same months of the rape offence being tried as this would be regarded as grossly unjust in forming a decision and those facts are up to the Judge to use for the penalty decision not sentencing decision.

Secondly, an external factor which is established and even exacerbates the decision the jurors make is that of how well society & the public as well as the media will treat the sentence; this being a major factor as it is courts responsibility to punish offenders accordingly to the seriousness of the crime and meeting society’s needs while also treating it justly.

Judges must explicitly state that jurors are to abide by their oath and so is the circumstance in this case as the judge instructed jurors to confine their consideration to the evidence and facts of the court proceedings with the judge being careful to remind jurors that they are to ignore any publicity. However it can be argued that to what extent this was followed is unknown and some may be doubtful that immense media coverage did not at all influence jurors.

The grounds upon which this argument is portrayed was all but removed by the court as was stated  “we accept that in many people’s minds some generalised recollection of the publicity would have continued at the time of the trial, we do not believe it was such to divert a juror from a proper consideration of the evidence. Thirdly, the lack of a willingness to cooperate would not have had a positive influence on the decision of jurors as Skaf refused to cooperate and simply denied his allegations – it can be fairly gathered and argued from this act alone that an innocent person would not forego these means to prove their innocence, this is something that Bilal Skaf simply did not attempt; clearly this fact would have affected the jurors actions and thus the sentencing decision.

Explain the penalty given: The primary factors involved in the penalty are the principle of totality being properly imposed, reaching a penalty that satisfies society’s demands so as not to spark media backlash (while could in turn place mistrust in the justice system) as well as meeting the objects of deterrence in the sentence ithout placing a sentence which accumulates to a degree which is so high that it appears overbearingly defeat the purpose of deterrence. Justice Matthews observed “the present offences are extremely serious, but I could not categorise them as being within the worst category” which affected the penalty decision for the events of 12 August 2000 and did not lead to a full 20 year sentence for both offences.

Additionally, when coming to a decision for these circumstance, totality is imperative as characterised in the federal sentencing decision of Postiglione v The Queen [1997] HCA 26; (1997)189 CLR 295 as Justice Hughes states: “the totality principle requires of a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved”.

The Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentence. This principle is central to an explanation of why this particular sentence was given. As a consequence of this, Justice Matthews noted that given the length of the sentence; it would unfairly impose upon totality if the sentence for Bilal Skaf’s present offences were cumulative upon his already existing sentences.

Thus the sentence for the 12 august 2000 was made partially concurrent with Skaf’s present sentence and partially cumulative upon his existing sentences. A stress exists between the principle of totality on the one hand, and, on the other, the need to ensure that a person who deliberately commits a series of separate criminal offences receives sufficient punishment for each of them, partially of course to provide deterrence and partially to satisfy the general public.

Skaf’s case, given his existing length sentence he is already serving and the tremendous seriousness of the present offences. With the first factor leaning to a less accumulation of this sentence upon existing while the second factor favours a greater accumulation. Bilal Skaf received his sentence and the first date he will become eligible for release on parole will be 11 February 2033.

Bibliography Supreme Court of New South Wales sentencing – 28/07/2006. Last Updated: 3 August 2006
Supreme Court of New South Wales – Court of Criminal Appeal Decisions 17 December 2008. Last Updated: 22 December 2008 http://www. austlii. edu. au/au/cases/nsw/NSWCCA/2008/303. html Supreme Court of New South Wales – Court of Criminal Appeal Decisions, 6/05/2004. Last Updated: 23 April 2008 http://www. austlii. edu. au/au/cases/nsw/NSWCCA/2004/37. html SAMANTHA WILLIAMS. (2005, September 18). Leniency for rapists — where’s the justice :[2 State Main Country Edition]. The Sunday Mail,p. 53. Retrieved December 4, 2010, from ProQuest ANZ Newsstand. Document ID: 897803791). SAMANTHA WILLIAMS. (2005, September 17). Scales of injustice making the victims pay :[1 State Edition]. The Daily Telegraph,p. 23. Retrieved December 5, 2010, from ProQuest ANZ Newsstand. (Document ID: 897418531). Cindy Wockner. (2010, July 3). We can’t forget and we’ll never forgive men who stole our innocence – Skaf gang rapes — 10 years on. The Daily Telegraph,13. Retrieved December 5, 2010, from ProQuest ANZ Newsstand. (Document ID: 2071800311). Shame on system not the victim :[2 Extended Metro Edition]. 2005, February 4). The Daily Telegraph,p. 32. Retrieved December 8, 2010, from ProQuest ANZ Newsstand. (Document ID: 788531171). NSW: Timeline of crimes and trials of Bilal Skaf. (28  July). AAP General News Wire,1. Retrieved December 9, 2010, from Academic Research Library. (Document ID: 1084718171). Criminal Procedure Amendment (Evidence) Bill 2005 – 2nd reading speeches (2R): http://www. parliament. nsw. gov. au/prod/parlment/nswbills. nsf/d2117e6bba4ab3ebca256e68000a0ae2/2c1150a2ad6e347fca256fb1001c4f0f/$FILE/C1505. pdf