Leach v The Queen

Case [2005] NTCCA 18

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, applied

R 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, followed

Bugmyv 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

R v EO (2004) 8 VR…

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AGLC
Leach v The Queen [2005] NTCCA 18
Case
[2005] NTCCA 18
Decision Date

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant for murder and rape, where the sentencing judge refused to fix a non-parole period pursuant to s 19(5) of the Sentencing (Crime of Murder) and Parole Reform Act 2003. The appellant sought to adduce fresh evidence on appeal in the form of a psychological report.

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

The scope for the exercise of any discretion is necessarily limited. This is so because, for s 19(5) to apply, the court must already have determined that the community interest “can only be met if the offender is imprisoned for the term of his or her natural life without the possibility of release on parole”. Having so determined, it is difficult to see what other sentencing principles would have the effect of making the described sentence inappropriate.Fresh evidence At the commencement of the hearing of the appeal the appellant sought to adduce fresh evidence in the form of a report from Professor Ogloff who is the Foundation Professor of Clinical Forensic Psychology and Director of Psychological Services, Victorian Institute of Forensic Mental Health. The respondent opposed the receipt of that evidence. Professor Ogloff was first approached to provide an opinion in relation to the appellant on 21 June 2005, some seven months after the reasons for judgment in the matter had been delivered. He assessed the appellant at the Alice Springs Gaol on 21 July 2005 and provided a detailed written report dated 9 August 2005. It is that report which the appellant sought to adduce in evidence. In preparing his report Professor Ogloff had regard to the complete transcript of the proceedings before the Chief Justice, the psychiatric and psychological reports available at that time, a clinical interview conducted by himself with the appellant including the results of psychological testing conducted at the time and, finally, information obtained in a telephone interview with a female friend of the appellant, Ms King. In providing his opinion Professor Ogloff accepted a version of events provided by the appellant which was not accepted by the Chief Justice. It was submitted on behalf of the appellant that the report was “new in the sense that it is scientifically based psychometric evidence from an internationally regarded expert in relation to both the diagnosis of the appellant and the significance of it in terms of his ongoing dangerousness”. It was submitted that the report provided a fresh perspective upon the issues joined between the appellant and the Crown and, it was argued, there was a significant possibility that had the fresh evidence been available at first instance it would have produced a different result in terms of the assessment of the community interest by reference to the evaluation of the dangerousness of the appellant. In his report Professor Ogloff noted that the appellant would meet the criteria for a diagnosis of antisocial personality disorder for the purposes of DSM-IV-TR-2000. However, he warned that the diagnosis must be treated with care. He said that, taken alone, the diagnosis was not particularly helpful in determining a person’s level of risk for future violence. He also indicated that whilst it may be possible to predict the category of risk for violence into which an individual falls it is important to note that “we are still not at a stage where it is possible to determine with a reasonable degree of accuracy just what would be an individual’s likelihood of being violent or reoffending sexually”. This view reflected that of Dr Walton who expressed the opinion that the prediction of dangerousness is an exercise that is inherently flawed. In relation to risk assessment processes Professor Ogloff also noted that “relatively little is known about exactly how valid the instruments are in the Australian context”.

Decision

Reasons for decision

While the appellant would become entitled to parole after 40 years of imprisonment this does not mean he would be granted parole and imprisonment pending the grant of parole remains punishment. For the appellant to be granted parole requires a unanimous decision of a meeting the Parole Board constituted by eight of its members. Conclusion I would allow the appeal and fix a non-parole period of 40 years.

Ratio Decidendi

Legal Principle Established

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