Citation: Regina v AEL [2005] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 20 April 2005
Judge(s): Grove J, Barr J, Latham J
Background
The applicant, identified by the initials AEL, pleaded guilty in the District Court to one count of unlawful carnal knowledge of a thirteen-year-old girl and one count of aggravated indecent assault of a fourteen-year-old girl. A further count of unlawful carnal knowledge of the first complainant was taken into account on sentencing. The offending occurred over a period of years within a group the applicant had organised around claimed spiritual beliefs.
The applicant was 75 years old at the time of sentencing and was already serving a Victorian sentence totalling seven years and six months for separate sexual offences against children. He suffered from multiple serious medical conditions, including heart disease, diabetes, hypertension, and hypothyroidism.
The District Court sentenced him to one year and six months for the first count and three years and nine months (with a non-parole period of two years) for the second count. The practical effect was to extend his total effective head sentence by approximately two and a half years and his non-parole period by just over nine months.
Legal Issues
- Whether the sentencing judge erred by stating that custodial sentences were required by authorities and precedent for both offences, including aggravated indecent assault, when that offence does not carry a mandatory custodial term
- Whether the sentence imposed on the second count (aggravated indecent assault) was manifestly excessive, having regard to sentencing statistics and the applicant's age and health
Decision
On the first ground, the Court accepted as a matter of principle that aggravated indecent assault does not invariably require a custodial sentence. The sentencing judge's remarks suggested he may have treated imprisonment as mandatory. However, the Court declined to infer that this misdirection actually inflated the sentence. Barr J held that any sentence short of full-time custody would have been inadequate given the serious nature of the offending, so no practical injustice resulted from the judge's framing.
The Court distinguished this from the earlier decision in R v O'Sullivan (1989), where the same type of error was found to have adversely affected the length of the custodial term. In the present case, the facts were sufficiently serious that the outcome would not have differed even if the judge had approached the question of custodial necessity more openly.
On the second ground, the Court acknowledged that the starting point of five years (before the guilty plea discount) represented approximately 71 per cent of the seven-year maximum, and that sentencing statistics placed this at the high end of the range. However, the Court noted that sentencing statistics can only indicate broad trends and do not, of themselves, demonstrate error. The very serious nature of the offending against the second complainant warranted a high sentence within the available range.
Regarding the applicant's health and age, the Court applied the principles from R v Burrell (2000) and Smith (1987): ill health may mitigate sentence, but only where imprisonment will be a greater burden by reason of health or where there is a serious risk of a gravely adverse effect. The Court found neither condition was met here, noting that no suggestion had been made that the applicant would be unable to receive appropriate medical care in custody.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Aggravated indecent assault does not carry a mandatory custodial sentence as a matter of law, and a sentencing judge who treats it as doing so makes an error in principle.
- No appellate intervention is warranted where such an error causes no practical injustice: if the offending is serious enough that any sentence short of imprisonment would have been inadequate regardless, the error will not affect the outcome.
- In dismissing the appeal, the Court confirmed that sentencing statistics indicating a sentence sits at the high end of the range do not, without more, establish manifest excess.
- Ill health and advanced age are recognised mitigating factors in sentencing, but they will only reduce a sentence where imprisonment imposes a materially greater burden on the offender or poses a serious risk to their health, and where adequate medical care in custody is unavailable.
- The Court of Criminal Appeal reaffirmed the principle from R v Burrell and Smith that poor health cannot function as a general licence to avoid punishment, and that custodial authorities bear primary responsibility for the medical care of sick prisoners.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act (NSW), s 32 (taking additional matters into account on sentencing)
Cases:
- R v O'Sullivan, unreported, NSW Court of Criminal Appeal, 20 October 1989
- R v Burrell (2000) 114 A Crim R 207
- Smith (1987) 27 A Crim R 315