A violent gang rapist should have been given a lesser sentence partly because he was a “cultural time bomb” whose attacks were inevitable, as he had emigrated from a country with traditional views of women, his barrister has argued.
MSK, who, with his three Pakistani brothers, raped several girls at their Ashfield family home over six months in 2002, was affected by “cultural conditioning . . . in the context of intoxification”, Stephen Odgers, SC, told the NSW Court of Criminal Appeal yesterday.
MSK, 26, MAK, 25 and MMK, 19, are appealing against the severity of their sentences after they were found guilty of nine counts of aggravated sexual assault in company—a crime carrying a maximum penalty of life imprisonment—against two girls, aged 16 and 17, in July 2002.
MSK and MMK were jailed for 22 years, with a non-parole period of 16½ years, and 13 years, respectively, and MAK for 16 years (12 years non-parole).
Court orders prevent them being named. They are yet to be sentenced for other rapes.
Mr Odgers said “new evidence” showed MSK had a “mental disorder” at the time of the rapes and had stopped taking his medication—supplied by his father, a general practitioner.
He also said Justice Brian Sully had made a “clear error” in sentencing them to an extra six years on two counts, rather than one—referring to an act in which MMK withdrew his penis and took off the condom and then continued to rape one of the girls.
“It was the same victim, it occurred in the same location, there was no relevant difference in the nature of the act. The time gap between the offences was minimal,” he said. Mr Odgers said a forensic psychologist, David Greenberg, had diagnosed MSK with “atypical compulsive obsessive disorder”.
MSK said: “When I stopped taking medication, I never had any idea in my mind that I would be committing these problems. If anything happened, it would happen accidentally, but I was commanded to do these things.”
After a special hearing, a judge concluded earlier this year that MSK was not mentally ill—the same conclusion reached by pre-sentence psychology reports in 2003.
Mr Odgers said the new evidence showed that he had a disease, which, combined with alcohol and the cultural conditioning of “a society with very traditional views of women”, was “clearly a factor in the commissioning of these offences”.
“The applicant was a cultural time bomb,” Mr Odgers said. “It was almost inevitable that something like this would happen. His culpability is lessened because of that combination.”
Professor Greenberg’s report concluded the disorder did not lead MSK to commit the rapes. He also said he may be malingering.
The father, who said at the trials that he was with his sons on the night of the rapes, told the court he had diagnosed MSK with schizophrenia.
“He told me . . . Satan come to him and tell him different things. He told me that sometimes even the green grass whisper to him.”
He refused to place his hand on the Koran when sworn in because he said he had not washed.
A spokesman for the Director of Public Prosecutions, Nicholas Cowdery, said he was unable to confirm whether the father would be charged with perjury over evidence he gave at the trials.
The appeal, funded by Legal Aid, follows their unsuccessful appeal against conviction, which failed when they took it to the High Court. The Court of Criminal Appeal has reserved its decision.