Leach v The Queen

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.