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…

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 Regina v AEL

Details

AGLC: Regina v AEL [2005] NSWCCA 148
Case: [2005] NSWCCA 148
Decision Date: 20 April 2005

CaseChat Overview and Summary

The case of Regina v AEL concerns an appeal against the sentences imposed on the applicant, AEL, by the District Court. AEL had pleaded guilty to one count of unlawfully and carnally knowing a thirteen-year-old girl and one count of indecently assaulting a fourteen-year-old girl in circumstances of aggravation. The District Court judge took into account another count of sexual intercourse with the first complainant, who was his "spiritual wife," in the sentencing process. The primary legal issues in this case revolve around the correctness of the sentencing process and the imposition of prison sentences for the offences. The Court had to consider whether the District Court judge correctly applied the principles of sentencing and whether the sentences were excessive.

The Court found that the District Court judge did not err in his assessment that the offences required prison sentences. The Court observed that the judge's remarks indicated that he understood the authorities and precedents required a custodial sentence for the offences in question. The Court noted that any sentence less than full-time custody for these serious offences would have been inadequate. In relation to the second count, the Court held that the judge was entitled to take a particularly strong view of the offence due to the aggravating circumstances, such as the victim being the applicant's daughter and the breach of trust. The Court found that the serious nature and consequences of the offence against the second complainant warranted a high sentence, even considering the applicant's age and medical conditions.

Ultimately, the Court dismissed the appeal and granted leave to appeal. The Court found that the District Court judge did not impose an impermissible extension of the applicant's period of incarceration due to his age and health, and that the sentences were appropriate given the circumstances of the case. The Court's orders were to dismiss the appeal and grant leave to appeal as proposed by Barr J.

Orders