Regina v AEL [2005] NSWCCA 148

New South Wales Court of Criminal Appeal

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

J Stratton SC COUNSEL: P Barrett

S E O'Connor SOLICITORS: S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0909

LOWER COURT JUDICIAL OFFICER: Woods QC DCJ

IN THE COURT OF CRIMINAL APPEAL 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.