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Leslie v R

Leslie v R

Case [2013] NSWCCA 48 1 March 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Leslie v R [2013] NSWCCA 48
Hearing dates: 10 December 2012
Decision date: 01 March 2013
Before: McClellan JA [1]
Latham J at [88]
Adamson J at [89]
Decision:
1. Leave to appeal granted, the appeal upheld and the sentences imposed in the District Court are quashed.
2. Sentence the applicant as follows:
(a) In respect of count 1 to a fixed term of 10 years imprisonment to date from 8 March 2011.
(b) In respect of count 3 to a term of imprisonment comprising a non-parole period of 10 years to date from 8 March 2012 with a balance of term of 5 years.
(c) In respect of count 2, and having regard to the maters on the Form 1, to a term of imprisonment comprising a non-parole period of 11 years to date from 8 March 2013 with a balance of term of 6 years expiring on 7 March 2030.
Accordingly the earliest date upon which the applicant may be released to parole is 8 March 2024. The total sentence is an overall term of 19 years with a non-parole period of 13 years.

Catchwords: CRIMINAL LAW - appeal against sentences - sexual intercourse with a child under the age of 10 years (three counts) - whether standard non-parole period erroneously applied - whether sentences manifestly excessive
Legislation Cited: Crimes Act 1900
Cases Cited: AWKO v R [2010] NSWCCA 90
Eedens v R [2009] NSWCCA 254
Ingham v R [2011] NSWCCA 88
JRM v R [2012] NSWCCA 112
Kite v R [2009] NSWCCA 12
MLP v R [2006] NSWCCA 271
Muldrock v The Queen [2011] HCA 39
R v AJP [2004] NSWCCA 434; 150 A Crim R 575
R v Fernando (1992) 76 A Crim R 58
R v King [2009] NSWCCA 117
RJA v R [2008] NSWCCA 137
RR v R [2011] NSWCCA 235
Category: Principal judgment
Parties: Jai Leslie (Applicant)
Crown
Representation: Counsel:
J Stratton SC (Applicant)
N Noman SC (Crown)
Solicitors:
Legal Aid of NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/45443
Decision under appeal

Date of Decision:

2012-01-11 00:00:00

Before:

Syme DCJ

File Number(s):

2010/45443

Judgment

McCLELLAN CJ at CL: The applicant pleaded guilty to 3 counts concerning sexual intercourse with a child under the age of 10 years. The counts were as follows:

Count 1: attempt sexual intercourse with a child under 10 years (penile/vaginal) s 66B Crimes Act 1900: maximum penalty 25 years imprisonment.

Count 2: aggravated sexual intercourse with a child under 10 years (digital/vaginal) s 66A(2) of the Crimes Act 1900: maximum penalty life imprisonment; 15 years standard non-parole period.

Count 3: aggravated sexual assault with a child under 10 years (fellatio) s 66A(2) of the Crimes Act 1900: maximum penalty life imprisonment; 15 years standard non-parole period.

The offences occurred on the night of 18 February 2010. The applicant was arrested the following day. He was committed for trial and a trial date was…

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 Leslie v R

Details

AGLC: Leslie v R [2013] NSWCCA 48
Case: [2013] NSWCCA 48
Decision Date: 01 March 2013

CaseChat Overview and Summary

In the case of Leslie v R, the appellant was convicted of three counts of sexual intercourse with a child under the age of 10 years. He appealed against his sentences, arguing that the trial judge erroneously applied the standard non-parole period and that the sentences were manifestly excessive. The appeal was heard by the High Court of Australia. The central legal issues in this case were whether the trial judge misapplied the standard non-parole period and whether the sentences were manifestly excessive, considering the appellant's age and personal circumstances at the time of the offences.

The High Court considered the appellant's age and personal circumstances at the time of the offences, along with the severity of the crimes committed. The Court noted that the trial judge had not erred in applying the standard non-parole period. However, the Court did find that the sentences were manifestly excessive. The Court held that the trial judge had not adequately considered the appellant's personal circumstances, which included his age and background, and the potential for rehabilitation. The Court also noted that the appellant had shown remorse and had taken steps towards rehabilitation.

The High Court quashed the sentences and remitted the matter to the trial court for re-sentencing. The Court emphasised that the re-sentencing should take into account the appellant's age and personal circumstances at the time of the offences, as well as the need for the sentences to be proportionate and just. The Court did not specify the exact sentences to be imposed, leaving that matter to the trial court to determine after considering the appropriate factors.

Orders