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Leishman v The Queen

Leishman v The Queen

Case [2019] VSCA 270 21 November 2019

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0256

DARCY THOMAS LEISHMAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	FERGUSON CJ, WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2019
DATE OF JUDGMENT:	21 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 270
SENTENCE APPEALED FROM:	DPP v Leishman [2018] VCC 1137 (Judge Smallwood)

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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to carjacking, negligently causing serious injury, intentionally causing serious injury and related summary charges – Two victims – Applicant has substantial criminal history – History of social disadvantage – Sentence six years’ imprisonment with non-parole period four years – Whether sentence manifestly excessive – Leave to appeal refused – Bugmy v The Queen (2013) 249 CLR 571, Veen v The Queen (No 2) (1988) 164 CLR 465 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Tehan QC with Mr G J F Chisholm	Kurnai Legal Practice
For the Respondent	Ms R L Harper	John Cain, Solicitor for Public Prosecutions

FERGUSON CJ
WHELAN JA
PRIEST JA:

Sentence and ground of appeal

On 25 July 2018, the applicant, aged 25 years,[1] pleaded guilty in the County Court to carjacking[2] (charge 1), negligently causing serious injury[3] (charge 2) and intentionally causing injury[4] (charge 3), and to the related summary offences of unlicensed driving,[5] trespass,[6] refusing a preliminary breath test[7] and committing an indictable offence whilst on bail.[8] Following a plea, the judge sentenced the applicant that same day to a total effective sentence of six years’ imprisonment, with a non-parole period of four years.
[1]His date of birth is 28 January 1993.
[2]Crimes Act 1958, s 79. The maximum penalty is 15 years’ imprisonment.
[3]Crimes Act 1958, s 24. The maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
[5]Road Safety Act 1958, s 18. The maximum penalty is 25 penalty units or three months’ imprisonment.
[6]Summary Offences Act 1958, s 9(1)(e). The maximum penalty is 25 penalty units or six months’ imprisonment.
[7]Road Safety Act 1958, s 49(1)(c). The maximum penalty is 120 penalty units or 12 months’ imprisonment.
[8]Bail Act 1977, s 30B. The maximum penalty is 30 penalty units or three months’ imprisonment.

The applicant admitted prior convictions, including multiple findings of guilt and convictions in the Children’s Court for a wide variety of offences such as recklessly causing injury; unlawful assault; threatening to cause serious injury; burglary; theft; theft of a motor vehicle; tampering with a motor vehicle; going equipped to steal; handling stolen goods; retaining stolen goods; dealing with the proceeds of crime; criminal damage; failing to answer bail; possessing cannabis; and driving offences. On 19 November 2013, he was sentenced to six months’ imprisonment for making a threat to kill; making a threat to cause serious injury; stalking; using a carriage service to menace; and theft. Very significantly, in the County…

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 Leishman v The Queen

Details

AGLC: Leishman v The Queen [2019] VSCA 270
Case: [2019] VSCA 270
Decision Date: 21 November 2019

CaseChat Overview and Summary

The appellant, Leishman, appealed against his sentence following his guilty plea to multiple criminal charges, including carjacking, negligently causing serious injury, and intentionally causing serious injury, among others. The case was heard by the High Court of Australia. The primary issue before the court was whether the sentence imposed on the appellant, six years' imprisonment with a non-parole period of four years, was manifestly excessive. The court needed to assess this in light of the appellant's substantial criminal history and his background of social disadvantage.

The court considered several precedents, notably Bugmy v The Queen and Veen v The Queen (No 2), to understand the principles governing the assessment of manifestly excessive sentences. It evaluated the totality of the appellant's criminal history, his social disadvantage, and the nature and circumstances of the offences. The court also assessed whether the sentence was disproportionate to the gravity of the offences committed. After thorough deliberation, the court concluded that the sentence was not manifestly excessive. It found that the sentence appropriately reflected the seriousness of the offences, the appellant's criminal history, and the principles of proportionality and deterrence.

The court further noted that the appellant's history of social disadvantage and the cumulative effect of his criminal behaviour were significant factors, but they did not render the sentence manifestly excessive. The sentence was deemed to be within the range of appropriate penalties for the crimes committed. Consequently, the appeal was dismissed, and the original sentence was upheld. The court did not grant leave to appeal, finalising that the sentence was neither manifestly excessive nor inappropriate in the given circumstances.

Orders