AEL v The Queen - [2007] NSWCCA 97

Reported Decision: 170 A Crim R 355

New South Wales

Court of Criminal Appeal

CITATION: AEL v R [2007] NSWCCA 97

HEARING DATE(S): 20 March 2007

JUDGMENT DATE:
4 April 2007

JUDGMENT OF: McClellan CJ at CL at 1; Barr J at 36; Hoeben J at 37

DECISION: 1. Grant leave to appeal and uphold the appeal; 2. The sentence imposed on 3 March 2006 is quashed; 3. The applicant is sentenced to a non-parole period commencing on 3 March 2006 and expiring 4 April 2007 with a further term expiring on 16 December 2008 (being the applicant's 19th birthday); 4. I direct the applicant's release to parole as soon as arrangements can be made for his accommodation in the Youth off the Streets Program. It is a condition of his parole that he accept the direction and supervision of the Department of Juvenile Justice including any direction as to his accommodation until the end of his parole period.

CATCHWORDS: CRIMINAL LAW - Appeal against sentence - sexual intercourse by a child on sibling under 10 years - sentenced imposed after breach of s. 9 bond - applicant unable to complete rehabilitative program due to lack of funding - evidence of behavioural and psychological problems

LEGISLATION CITED: Crimes Act 1900
Children (Criminal Proceedings) Act 1987
Children Criminal Proceedings Regulation 2000 No 433 (repealed)
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v JDB (2005) 153 A Crim R 164; NSWCCA 102
R v KLH (2004) 148 A Crim R 515; NSWCCA 312
R v KBM [2004] NSWCCA 123

PARTIES: AEL (Appl)
The Crown

FILE NUMBER(S): CCA 2006/2616

COUNSEL: M Ierace SC (Appl)
D M L Woodburne (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0146

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

LOWER COURT DATE OF DECISION: 3 March 2006

2006/2616

McCLELLAN CJ at CL
BARR J
HOEBEN J
WEDNESDAY 4 APRIL 2007

AEL v R

Judgment

1 McCLELLAN CJ at CL: The applicant, AEL, pleaded guilty at Wyong Children’s Court on 6 May 2003 to one count of sexual intercourse with a child beneath the age of 10. Three further matters of indecent assault upon another child under the age of 10 were included on a Form 1. At the time of the offences the applicant was aged no more than 13 years and possibly 12. The victims in each case were his siblings, his brother then aged about 8 and his sister aged about 5.

2 The sexual intercourse count was a breach of s 66A of the Crimes Act 1900 and at the time of the offence carried a maximum penalty of 20 years imprisonment. The matters on the Form 1 were breaches of s 61M(2) of the Act for which the maximum penalty is 10 years imprisonment.

3 The sentencing judge, correctly, determined that the offence contrary to s 66A was a serious children’s indictable offence and accordingly the applicant was required…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AEL v The Queen

Details

AGLC: AEL v The Queen [2007] NSWCCA 97
Case: [2007] NSWCCA 97
Decision Date: 4 April 2007

CaseChat Overview and Summary

The appellant in this case, AEL, was convicted of engaging in sexual intercourse with a sibling under the age of 10 years. The appeal against the sentence was heard in the High Court of Australia. The central issue before the court was whether the sentence imposed, following a breach of the bond conditions under section 9, was appropriate given the appellant's inability to complete a rehabilitative program due to funding constraints and the presence of behavioural and psychological issues. The court had to determine if the sentence was unduly harsh considering these circumstances.

The legal issues revolved around the appropriate sentence for the offence and whether the conditions of the imposed sentence were fair, taking into account the appellant's inability to complete the required rehabilitative program. The court examined whether the sentence was influenced by the breach of the bond, and whether the appellant's psychological and behavioural conditions should have been taken into account more substantially. The appellant argued that the sentence was excessive and did not adequately consider the mitigating factors of their inability to participate in the rehabilitative program and the underlying issues contributing to their offending behaviour.

The court acknowledged the seriousness of the offence but also recognised the appellant's inability to complete the rehabilitative program due to lack of funding and the presence of significant behavioural and psychological issues. The court found that the sentence, while severe, was not unjust given the nature of the offence. However, the court noted that the sentencing judge did not adequately consider the appellant's inability to complete the rehabilitative program and the impact of their psychological and behavioural conditions on their capacity to reoffend. The court decided to reduce the sentence, reflecting a more balanced consideration of all mitigating factors.

The final orders of the court included a reduction in the sentence imposed on the appellant. The court emphasised the importance of considering all mitigating factors, including the appellant's psychological and behavioural conditions, when determining the appropriate sentence for offences of this nature. The reduction in sentence was aimed at ensuring a more equitable outcome, taking into account the appellant's inability to complete the rehabilitative program and the underlying issues that contributed to their offending behaviour.

Orders