Leach v The Queen [2005] NTCCA 18
PARTIES:LEACH, Martin
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 21 of 2004 (8312499)
DELIVERED: 22 December 2005
HEARING DATES: 18 and 19 August 2005
JUDGMENT OF: MILDREN, RILEY & SOUTHWOOD JJ
CATCHWORDS:
CRIMINAL LAW – APPEAL – SENTENCE – MURDER – RAPE – LIFE IMPRISONMENT – Sentencing (Crime of Murder) and Parole Reform Act 2003 – refusal to fix a non-parole period pursuant to s 19(5) – whether sentencing judge erred in law – standard of proof – whether test for determining if a person is at risk of reoffending is proof beyond reasonable doubt.
CRIMINAL LAW – EVIDENCE – ADMISSABILITY OF FRESH EVIDENCE ON APPEAL – Whether expert psychological report admissible on appeal – opinion was available but not sought at time of hearing – whether fresh evidence would “very probably have altered the sentence imposed” – material provides a different perspective but does not derogate from conclusions reached
Crimes (Sentencing Procedure) Act (NSW), s 61(1)
Criminal Code (NT), s 410(c), s 419
Criminal Law Consolidation Act (NT), s 5
Parole of Prisoners Act 1979 (NT), s 4, s 4(3)(6), s 5
Parole of Prisoners Ordinance 1976, s 4(3)(b)
Sentencing (Crime of Murder) and Parole Reform Act 2003, s 18(a), s 18(b), s 19, s 19(1)(a)(ii), s 19(3), s 19(5), s 20
Sentencing Act (NT), s 5(1), s 5(2), s 53(3), s 53A, s 53A(4), s 53A(5), s 53A(6)-(8), s 54, s 55, s 55A, s 59(1)(a), s 65(8), s 71
Anderson v R (1997) 92 A Crim R 348 at 357, applied
Babic v R [1998] 2 VR 79, applied
Craig v R (1933) 49 CLR 429 at 439, applied
Dooley v The Queen [2003] NTCCA 6 at [41], applied
Gallagher v R (1986) 160 CLR 392 at 402, applied
R v Barton (unreported, NSWCCA 28 July 1995) applied
R v Cheatham [2000] NSWCCA 282 at [92], applied
R v Gieselmann (unreported, NSWCCA 13 July 1998) applied
R v Kucma [2005] VSCA 58, appliedR v Olbrich (1999) 199 CLR 270, applied
R v Rostom [1996] 2 VR 97, applied
Green v The Queen (2000) 155 FLR 240, followed
R v Merritt (2004) 146 A Crim R 309, 59 NSWLR 557, followedBugmyv R (1990) 169 CLR 525, referred to
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, referred to
Deakin v R (1984) 11 A Crim R 88, referred to
Julius v Bishop of Oxford (1880) 5 App Cas 214, referred to
O’Brien v Gillies (1990) 69 NTR 1, referred to
Power v The Queen (1974) 131 CLR 623, referred to
R v Chan (1994) 76 A Crim R 252, referred to
R v Denyer [1995] 1 VR 186 at 193, referred to
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- Leach v The Queen [2005] NTCCA 18
- Case
- [2005] NTCCA 18
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentencing judge erred in law by refusing to fix a non-parole period, and whether the standard of proof for determining an offender's risk of reoffending is beyond reasonable doubt. Additionally, the court considered the admissibility of the fresh expert psychological evidence, specifically whether it would have "very probably altered the sentence imposed" had it been available at the original hearing.
The court reasoned that the discretion to refuse a non-parole period under s 19(5) is limited, as it requires a prior determination that the community interest can only be met by life imprisonment without parole. The court found that the fresh evidence, while offering a different perspective and noting the appellant's diagnosis of antisocial personality disorder, did not fundamentally undermine the conclusions reached by the sentencing judge regarding the appellant's dangerousness. The expert acknowledged limitations in predicting future offending with reasonable accuracy.
The appeal was allowed, and a non-parole period of 40 years was fixed. The court noted that while the appellant would be eligible for parole after 40 years, its grant was not guaranteed and remained subject to the Parole Board's decision.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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