Regina v AEL

[2005] NSWCCA 148

CITATION:	Regina v AEL [2005] NSWCCA 148
HEARING DATE(S):	20 April 2005
JUDGMENT DATE:	20 April 2005
JUDGMENT OF:	Grove J at 1, 24, 26; Barr J at 2; Latham J at 25
DECISION:	Leave to appeal granted. Appeal dismissed.

PARTIES:	Regina, AEL
FILE NUMBER(S):	CCA 2004/3294
COUNSEL:	J Stratton SC P Barrett
SOLICITORS:	S E O'Connor S Kavanagh

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0909
LOWER COURT JUDICIAL OFFICER:	Woods QC DCJ

2004/3294

GROVE J
BARR J
LATHAM J

20 APRIL 2005

REGINA v AEL

Judgment

1 GROVE J: The Court is in a position to give judgment and I will ask Justice Barr to give the first judgment.

2 BARR J: The applicant, AEL, appeals against sentences imposed in the District Court. On 22 March 2004 he pleaded guilty before Woods QC DCJ to one count of unlawfully and carnally knowing a certain girl, then aged between ten and sixteen years, namely thirteen years, and one count of indecently assaulting a second girl in circumstances of aggravation, they being that at the time the girl was fourteen years of age. The applicant asked his Honour to take into account under the provisions of s32 Crimes (Sentencing Procedure) Act a further count of unlawfully and carnally knowing the girl contemplated in the first count.

3 The first complainant lived in a suburb of Sydney and, through visiting friends nearby, came to meet the applicant. He befriended her and invited her to his house to meet other people and talk about spiritual things. She began to attend meetings there regularly and became friendly with the group of people who gathered there. There was an occasion when the applicant told the complainant and others present that she was his “spiritual wife”. He kissed her. Shortly after that, during the time that the complainant was in first form at the local high school, she found herself alone with him and he had sexual intercourse with her. She told him that she was thirteen years old. Thereafter the applicant and the complainant had sexual intercourse regularly over at least the next year. The offence taken into account in sentencing was constituted by a further act of sexual intercourse between the applicant and the complainant during that time.

4 The association between the two continued over the next twenty years or so, during which time the applicant acquired ten such spiritual “wives”. He fathered sixty-three children, two of them by the first complainant.

5 The complainant in the second count was the daughter of one of those wives, but not of the first complainant. During 1992, when the second complainant was fourteen years old, she was living as part of the applicant’s family. They were camping at a country town. When she was asleep in a tent one night, the applicant entered the tent, pulled her legs apart and rubbed her vagina over her clothing.

6 When he came before his Honour the applicant was serving a series of sentences imposed upon him in Victoria for sexual offences on children. There were four such offences, for which a total aggregate sentence of seven years and six months had been imposed and a non-parole period of five years fixed. It appeared to his Honour that the applicant was likely to be released to parole on 12 June 2005.

7 For the first count, and taking into account the matter requested, his Honour sentenced the applicant to imprisonment for a period of one year and six months, commencing on 22 March 2004 and expiring on 21 September 2005. On the second count his Honour sentenced the applicant to imprisonment for a period of three years and nine months, commencing on 22 March 2004 and expiring on 21 December 2007, and fixed a non-parole period of two years, expiring on 21 March 2006.

8 The net effect of the sentences was to increase by about two and a half years the total effective head sentence the applicant would have to serve for offences of this kind and to increase his non-parole period by a little more than nine months.

9 The applicant was seventy-five years old when sentenced. He was suffering from non-insulin dependent diabetes, hypothyroidism, hypertension and serious heart problems. He had already suffered a myocardial infarction. He was on the waiting list for hernia surgery and there was a risk of bowel strangulation. He had other medical problems as well, and his Honour was satisfied that they and the advanced age of the applicant would make it difficult for him to serve his sentence. It was on account of those matters that his Honour adjusted the prima facie relationship between the effective head sentence and the non-parole period.

10 There are two grounds of appeal. The first asserts that his Honour erred in pronouncing that aggravated indecent assault was an offence for which the authorities and sentencing precedents require the imposition of prison sentences. During his remarks on sentence his Honour said this -

Nonetheless I am asked to take into account the medical material as justifying a finding of “special circumstances”. Perhaps before I come to that point, I should say that there can be no doubt that the authorities and sentencing precedents require the imposition of prison sentences for both these offences.

11 The attention of the Court was referred to a number of cases demonstrating that the offence of indecent assault generally or in its aggravated form did not necessarily require the imposition of a custodial sentence.

12 The principle may be accepted and it is not necessary to deal individually with the cases. However, the difficulty faced by the applicant in this ground of appeal is that it does not appear that his Honour’s acceptance that a custodial sentence had to be imposed led to the imposition of a custodial sentence in a case where it was not well justified. In my view any sentence less than one of full time custody for these serious offences would have been inadequate.

13 Counsel for the applicant relies on a judgment of this court in R v O'Sullivan, unreported decision of 20 October 1989, in which the trial judge was found to have erred in saying that a custodial sentence had to be imposed in every case of indecent assault. Delivering the judgment of the Court, Priestley JA said this -

It seems to me highly likely that this over-strict approach must have also affected in a way adverse to the applicant the trial judge's view about the appropriate length of the custodial term to be fixed in such cases.

14 That was the judgment of the Court on the facts of that case. However, it seems to me that in the present appeal his Honour's words meant no more than that by reference to the authorities and the precedents, and looking at the facts of the case, a custodial sentence was necessary. In those respects his Honour was correct. I would not infer that his Honour's use of those words led to an imposition of a sentence which was greater than what would otherwise have appropriate.

15 The second ground of appeal complains that the sentence on the second count was manifestly excessive. During his remarks on sentence his Honour said this -

I turn to the second matter which I regard as the more serious, albeit the notional maximum penalty is less, being only seven years. This is an offence which is akin to incest, although it is not strictly so - it is indecent assault, and the aggravating feature referred to in the indictment being a factor of age. Nonetheless it is part of the facts before the court agreed to by the parties, that the victim was in fact the daughter of the offender. Ordinarily members of the public and the Courts regard sexual interference by a father with his biological daughter as being particularly reprehensible and particularly offensive.
I am not sentencing him for incest because, as I say, the facts and the law of the case do not go that far. The offence was certainly not the worst offence of such a kind of indecent assault, even aggravated indecent assault. There is no violence involved apart from, as it were, the psychic violence of a father, a person having a natural authority over a child, being the one who does the actions which are referred to in the facts – pulling her legs apart as she pretended to be asleep and then touching and rubbing her vagina over her clothing. I repeat that I am not sentencing this man for anything other than what appears before me in the indictment and in the agreed facts. Nonetheless, even bearing that in mind, it is reprehensible behaviour, and but for the plea of guilty, I would have regarded it as appropriate to sentence this man to five years imprisonment for this offence, even though it is some time ago.

16 It was submitted on appeal that the starting point of five years was seventy-one per cent of the maximum penalty for this offence of seven years. It was submitted that statistics showed that only fifteen per cent of offenders sentenced to full time imprisonment received a longer head sentence than that imposed on the applicant and only eleven per cent received a greater non-parole period. It was submitted that the sentence was manifestly excessive looking at the objective circumstances alone, and that when one considered in addition the applicant’s age and complex medical problems excess became manifest.

17 It seems to me that his Honour was entitled to take a particularly strong view of the second count. Not only was the complainant the daughter of the applicant and subject to his control, making his an offence a very gross breach of trust. This was not the first offence the applicant had committed on the second complainant. One of the Victorian offences, with which the sentence for this offence was made partly concurrent, was for an indecent assault the applicant perpetrated upon the complainant during 1987 and 1988.

18 The complainant suffered substantial psychological damage. In a statement she wrote to the sentencing court she said that the effect of the offence upon her was to make her reserved and inhibited and unable to socialise. She came last in her class. She had no friends. She left home at sixteen, finding that she lacked any support there, and turned to alcohol and drugs to escape her problems. They made them worse, of course. Her weight fluctuated between forty-one and eighty-three kilograms. She was only ever able to get one job, which lasted two weeks. She felt a failure. She had a number of relationships with men and had given birth to a son, but already the Department of Community Services had become involved and she needed support in carrying out the duties of a parent. She was suffering from depression and had been prescribed antidepressant medicine.

19 The Court has often observed how difficult it is to draw conclusions except in the broadest sense from sentencing statistics. What the statistics show is that the sentence imposed by his Honour was high in the range of existing sentences, but no more, I think, than that. The very serious nature and consequences of the applicant’s offence against the second complainant was bound in my view to attract a high sentence.

20 As I have said, the net effect of the sentences was to increase the non-parole period by a little over nine months and the head sentence by about two and a half years. These periods of time are not inconsiderable for a man of the applicant’s age and state of health. It is not suggested, however, that the applicant will be unable to receive proper medical attention because of his incarceration. In R v Burrell (2000) 114 A Crim R 207 Mason P said this -

…The health of an offender is a factor which properly bears upon the length and type of sanction. The relevant principles were stated authoritatively by King CJ in Smith (1987) 27 A Crim R 315 at 317:

The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health. (emphasis added)

21 In my opinion it could not be said that the applicant’s age and state of health were such as to render impermissible the resulting extension of his period of incarceration.

22 In my opinion the second ground of appeal has not been made good. I would grant leave to appeal but would dismiss the appeal.

23 GROVE J: I agree.

24 LATHAM J: I also agree.

25 GROVE J: The orders of the Court therefore will be as proposed by Barr J.

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