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Leach v The Queen

Leach v The Queen

Case [2008] NSWCCA 73 1 April 2008

Appeal

Sentencing

Criminal Liability

Intellectual Disability

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: LEACH v THE QUEEN [2008] NSWCCA 73

HEARING DATE(S): 5 December 2007

JUDGMENT DATE:
1 April 2008

JUDGMENT OF: Basten JA at 1; Hidden J at 22; Barr J at 52

DECISION:
(1) Grant leave to appeal.
(2) Allow the appeal and quash the sentence passed by Hulme J on 27 April 2007.
(3) In lieu thereof the applicant is sentenced to imprisonment for 6 years, comprising a non-parole period of 3 years and 6 months, commencing on 15 July 2005 and expiring on 14 January 2009, and a balance of term of 2 years and 6 months, commencing on 15 January 2009 and expiring on 14 July 2011.

CATCHWORDS: CRIMINAL APPEAL – appeal against sentence – exercise of sentencing discretion – when appellate intervention warranted – demonstration of error or manifest excess - NON-PUBLICATION ORDER – child victim deceased at time of proceedings – Children (Criminal Proceedings) Act 1987 (NSW) s 11 - SENTENCING – appeal against sentence – manifestly excessive – manslaughter of child – applicant with intellectual disability – anxiety – depression – effect of intellectual disability on assessment of moral culpability – effect of intellectual disability on assessment of general and specific deterrence – consideration of prior offences – previous good character – good prospects of rehabilitation

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 (NSW), s 11
Constitution (Cth), s 73
Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6

CATEGORY: Principal judgment

CASES CITED: Courtney v The Queen [2007] NSWCCA 195; 172 A Crim R 371
DB v Regina [2007] NSWCCA 27; 167 A Crim R 393
House v The King (1936) 55 CLR 499
The Queen v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581
R v Blacklidge (12 December 1995 unreported)
R v Elliott; R v Blessington [2006] NSWCCA 305; 68 NSWLR 1
R v Engert (1995) 84 A Crim R 67
R v Hemsley [2004] NSWCCA 228
R v PP [2003] VSCA 100; 142 A Crim R 369
R v Rowe [2007] NSWSC 300
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Storey [1998] 1 VR 359
R v Trevenna [2004] NSWCCA 43
R v Woodland [2001] NSWSC 416
Regina v Hoerler [2004] NSWCCA 184; 147 A Crim R 520
Skinner v The King (1913) 16 CLR 336
Webb v O’Sullivan [1952] SASR 65
Whittaker v The King (1928) 41 CLR 230

PARTIES: Benjamin Anthony Leach (Appellant)
The Queen (Respondent)

FILE NUMBER(S): CCA 2006/3757

COUNSEL: A Francis (Appellant)
M Hobart SC (Respondent)

SOLICITORS: S O'Connor - Legal Aid Commission (Appellant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 2006/2108

LOWER COURT JUDICIAL OFFICER: Hulme J

LOWER COURT DATE OF DECISION: 27 April 2007

LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWSC 429

CCA 2006/3757
SC 2006/2108

BASTEN JA
HIDDEN J
BARR J
1 April 2008

LEACH v THE QUEEN

Headnote

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Leach v The Queen

Details

AGLC: Leach v The Queen [2008] NSWCCA 73
Case: [2008] NSWCCA 73
Decision Date: 1 April 2008

CaseChat Overview and Summary

The applicant, Leach, appealed against the sentence imposed by the NSW Supreme Court for the manslaughter of his young child. The High Court of Australia was tasked with determining whether the sentence was manifestly excessive. The applicant argued that his intellectual disability, anxiety, and depression should have mitigated his sentence, and that the trial judge had failed to adequately consider these factors. The Crown contended that the sentence was appropriate given the gravity of the offence and the need for general and specific deterrence.

The Court examined the principles guiding appellate intervention in sentencing matters. It noted that appellate courts should only intervene if there is a demonstration of error or a manifest excess in the sentence. The Court held that a sentence may be considered manifestly excessive if it is so disproportionate to the offence that it shocks the conscience of the court. In this case, the Court found that the trial judge had appropriately considered the applicant's intellectual disability and other mitigating factors. However, the Court concluded that the sentence was indeed manifestly excessive, given the applicant's intellectual disability and other personal circumstances.

The Court further considered the impact of the applicant's intellectual disability on moral culpability and the effectiveness of general and specific deterrence. It found that while the disability did mitigate the applicant's culpability, it did not negate it entirely. The Court also noted that the prior good character and prospects of rehabilitation should be considered but were not determinative. Ultimately, the Court found that the sentence, which was a term of imprisonment with a non-parole period, was disproportionate to the offence and amounted to a manifest excess. The Court allowed the appeal, quashed the sentence, and remitted the matter to the NSW Supreme Court for resentencing.

In light of the Court's decision, the NSW Supreme Court will need to resentence the applicant, taking into account all relevant factors, including the applicant's intellectual disability, anxiety, depression, and prospects for rehabilitation. The Court did not specify the nature of the new sentence, leaving that determination to the trial court.

Orders