Leeder v The Queen - [2010] VSCA 98

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0677

DERRICK JON LEEDER
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and BUCHANAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 April 2010
DATE OF JUDGMENT:	23 April 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 98
JUDGMENT APPEALED FROM:	R v Derrick Jon Leeder (Unreported, County Court of Victoria, Judge Hannan, 28 May 2008)

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CRIMINAL LAW – Appeal – Sentence – Indecent assault, intentionally causing injury and assault with intent to rape – Deprived upbringing – Intellectual disability – Sentence of six years and four months’ imprisonment with a minimum term of three years and nine months – Manifestly excessive – Re-sentenced.

CRIMINAL LAW – Sentence – Intellectually-disabled offenders – Special needs – Inappropriateness of imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Michael Brugman Barristers & Solicitors
For the Respondent	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I will invite Buchanan JA to deliver the first judgment.

BUCHANAN JA:

The appellant was arraigned in the County Court and pleaded guilty to a presentment containing one count of assault with intent to rape (count 1), two counts of indecent assault (counts 2 and 3) and one count of intentionally causing injury (count 4). After a plea, the appellant was sentenced to be imprisoned for a term of four years and eight months on count 1; for a term of 12 months on count; for a term of three years on count 3; and for a term of 18 months on count 4. With a measure of cumulation, a total effective sentence of six years and four months was produced. The sentencing judge fixed a minimum term of three years and nine months before the appellant was to become eligible for parole. The appellant was sentenced on count 3 as a serious sexual offender.

The appellant has been granted leave to appeal against the sentence by a single judge of this Court.

The offences arose from assaults by the appellant upon two women. The victim of the first attack, a woman aged 27 years, was walking in the afternoon in Stud Street, Kensington. As she was about to cross the road, she turned and made eye contact with the appellant. The appellant grabbed her in a bear hug lifting her off the ground. He carried her some five metres behind a hedge, threw her onto the concrete and got on top of her. The woman was screaming and pleading with the appellant not to hurt. He yelled at her to, ‘Shut up’ and said ‘I just want to fuck you’, while pushing her head into the concrete.

The appellant grabbed the victim’s hands and pinned them behind her head and started kissing her on the mouth. She screamed for help. The appellant placed his hand over her mouth and said, ‘Shut up or I’ll kill you’. She continued to struggle, trying to attract the attention of passers-by. The appellant…

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 Leeder v The Queen

Details

AGLC: Leeder v The Queen [2010] VSCA 98
Case: [2010] VSCA 98
Decision Date: 23 April 2010

CaseChat Overview and Summary

In Leeder v The Queen, the appellant, Leeder, appealed against his sentence for a series of criminal offences, including indecent assault, intentionally causing injury, and assault with intent to rape. The case was heard in the High Court of Australia, which was asked to determine whether the original sentence was manifestly excessive and whether the appellant's circumstances warranted a different sentence. The appellant argued that his deprived upbringing and intellectual disability should have been considered more significantly when determining his sentence.

The court identified the legal issues as the appropriateness of the original sentence in light of the appellant's deprived upbringing and intellectual disability, and whether imprisonment was suitable given these factors. The court examined the original sentence of six years and four months' imprisonment with a minimum term of three years and nine months, concluding that it was manifestly excessive. The court considered the appellant's deprived upbringing and intellectual disability, which significantly impacted his capacity for self-control and understanding of the consequences of his actions. The court also noted the inappropriateness of imprisonment for intellectually disabled offenders who have special needs.

The High Court found that the original sentence was manifestly excessive and did not adequately account for the appellant's deprived upbringing and intellectual disability. The court re-sentenced the appellant to a term of imprisonment with a non-parole period, taking into account his special needs. The court emphasised the importance of considering the unique circumstances of intellectually disabled offenders when determining their sentence, ensuring that their special needs are addressed appropriately. The final orders reflected the court's decision to re-sentence the appellant, taking into account his deprived upbringing and intellectual disability.

Orders