Appeal in Relation to the Offender AEM Snr
161 The charges of which AEM Snr was convicted involved both victims. The details have already been considered.
162 AEM Snr's subjective features as taken into account by the trial judge, and which remain relevant on the re-sentence, are as follows. He is the eldest of five children born to parents of Lebanese extraction. He attended local State primary and secondary schools finishing his School Certificate in 1997. His father died suddenly from a heart attack in August 1997 in AEM Snr's presence. His father's sudden death had an adverse affect on him. He began to abuse alcohol and cannabis. He attempted to return to school in 1998 but could not cope and left to work in the building industry and then later as a courier. He was also employed for a period as a labourer in a truck rental business owned by his cousin's husband. He was unemployed at the time of the offences. At the time of sentencing he was engaged to a young woman in Australia with whom he had been in a relationship for about 18 months.
163 AEM Snr expressed remorse for his actions to the author of a psychological report and professed to be a changed person since his incarceration. Whilst in custody he has undertaken a number of vocational and self-development courses.
164 His criminal history commenced in 1998 and included traffic and property offences and offences of dishonesty. At the time of the commission of the current offences he was the subject of two recognisances - the first imposed in November 1998 for 2 years for driving whilst disqualified and the second in December 1999 for 1 year for possession of car-breaking implements. Counsel for AEM Snr noted that he had no previous convictions for any matters of violence.
165 It is convenient at this stage to refer to a further submission made on AEM Snr's behalf.
166 Senior counsel for AEM Snr submitted that if this Court did conclude that the sentences were manifestly inadequate, the Court still ought not, as a matter of discretion, re-sentence him. Two affidavits were filed in support of the submission, one by AEM Snr and one by his solicitor. In his affidavit, AEM Snr gave evidence that when he first came into custody he was scared, he could not get used to gaol for the first 6 months. He had lost a significant amount of weight and had experienced chest pains due to stress. He had also experienced physical problems such as aching in his knees in winter due to the cold conditions in gaol. He contends he has been discriminated against in relation to job allocation because "of what [he] was in for". He has done some development and self awareness courses since being in gaol and proposes to do more once this appeal is finalised. He says his life in gaol has been more stressful because of the extensive media coverage of the case. He says his attitude has "changed a lot" since being in gaol.
167 In her affidavit sworn 1 February 2002, AEM Snr's solicitor, Mary Anne Spiers Williams, annexes certificates of courses AEM Snr has taken since being sentenced, a testimonial from his cousin, photocopies of newspaper reports relating to the sentencing of the respondent (Annexure C) and, "citation summaries of media reports" (Annexure D) which may relate to the respondents, provided by Media Monitors. That material comprised 52 pages.
168 Objection was taken by the Crown to the admission of the newspaper reports and the "citation summaries" as not relevant to the matters in issue on the appeal. Senior Crown counsel conceded that there had been considerable publicity surrounding the sentencing of these respondents. He pointed out, however, that a great deal of the material in the citation summaries did not relate to this case.
169 There can be no doubting that this case has been the subject of intense media coverage. We accept that that may have had some impact on AEM Snr in gaol. He has said so in his affidavit and the Crown did not cross-examine him. However, many of the newspaper articles and citation reports deal with matters which are outside the matters in issue on the appeal and are accordingly not relevant to this Court's determination. As no attempt was made to narrow the material, and given the Crown's concession, we propose to reject Annexures C and D of the affidavit.
170 Notwithstanding the matters put forward on behalf of AEM Snr, we consider that the sentences imposed on him were so manifestly inadequate, that he must be re-sentenced.
171 Her Honour stated that AEM Snr's youth was a matter which was a factor which must be taken into account in the sentencing exercise. We have already referred to the principles to which regard must be had in such circumstances. We only add to those statements of principle the following comment. It is usually not possible to state general precepts in relation to any personal circumstance for the purposes of the criminal law. The reason for that is plain, namely that sentencing is based upon the fundamental principle of individualised judgment. However, and giving full recognition to that principle, it must be said that it will be rare that the relative youth of an adult offender will be a reason for giving less weight to general deterrence than otherwise would be the case for offences of the kind which are before the Court.
172 There was nothing in AEM Snr's individual circumstances which would cause us to consider his youth as a factor which calls for less weight to be given to general deterrence. There was no suggestion that AEM Snr did not understand the nature of his conduct. His conduct during the course of these attacks, especially in the matter referred to in the next paragraph, shows that his youth can play no role in any way in diminishing the extent of his culpability.
173 The offence the subject of the first count was committed in circumstances where AEM Snr held a knife to DB's throat. Before the actual commission of the offence, he had given the victim a "choice", under a threat of herself and JH being killed, as to whether she would have sexual intercourse with him, AEM Jnr or MM. When DB "chose" AEM Jnr, AEM Snr said he would, and he did, come back for "his turn". Such conduct was machiavellian in the extreme.
174 In the opinion of the Court, taking into account the discount for the plea of guilty and applying the principle of double jeopardy we consider that the appropriate sentence for this offence is 11 years.
175 Is this a case where the Court should vary the statutory relationship between the non-parole period and the sentence we have set? That question involves a consideration of whether there are special circumstances. The sentencing judge considered that AEM Snr's prospects of rehabilitation appeared guarded. However, she found special circumstances existed based upon the fact that he would require supervision to effect his re-integration back into society and because this was his first custodial sentence. There was nothing specific before her Honour to support the first of these reasons, although it is a view undoubtedly borne out by experience as a sentencing judge, and we think, must go without saying, in the case of a longer period of incarceration as will be involved here. We also agree with her Honour that in this case, the fact that this is AEM Snr's first experience of a custodial sentence is a relevant factor. There is also some indication in AEM Snr's affidavit that he is attempting to address some of his problems. It is therefore possible that the prospects of rehabilitation are now more positive. Given all these factors, we find special circumstances and consider it appropriate to vary the non-parole period.
176 We would therefore specify a non-parole period of 7 years.
177 The offence charged in the second count did not involve any immediate threat of death or other physical harm and no weapon was involved. However, shortly before the commission of that offence, AEM Snr had pulled out a knife. He had then left whilst JH was sexually assaulted first by MM and KEM. AEM Snr then committed the sexual assault contained in the Form 1, followed by the occasion of sexual intercourse which was count 2 in the indictment. The Form 1 offence was charged in connection with the second count and AEM Snr is thus to be sentenced on that count in accordance with the principles to which we have referred.
178 In our opinion, taking into account the overall criminality of the two offences, given that one offence is on a Form 1, applying the discount for the plea of guilty and giving effect to the principle of double jeopardy, the appropriate sentence for this offence is 11 years. We find special circumstances and take that into account in determining the non-parole period, which we specify to be 7 years.
179 The question which then arises is whether it is appropriate that the sentences be served concurrently or cumulatively. The offences cannot, in our opinion, be considered to be part of the one criminal enterprise. They were committed against different victims, in separate parts of the house with some hours intervening. When these matters are taken into account and the totality of AEM Snr's criminality in relation to the offences is considered, we are of the opinion that partial accumulation is warranted.