DPP v Leslie (County Court of Victoria, Judge McInerney, 27 May 2024)
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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Common assault – Theft – Threat to kill – Intentionally damage property – Koori Court Division hearing – Sentenced as serious violent offender on threat to kill charges – Applicant had significant history of like offending – Applicant offended only days after release from custody for previous offending – Applicant had severely disadvantaged background and intellectual impairments – Moral culpability reduced due to intellectual impairment – Whether judge failed to find moral culpability reduced by reason of disadvantaged background – Judge had regard to totality of psycho-social evidence – Not necessary for judge to identify causal connection between childhood deprivation and offending – Whether judge made factual errors – Factual errors immaterial to sentence – Whether sentence manifestly excessive – Judge gave adequate weight to relevant factors in mitigation – Judge balanced reduced moral culpability with need for community protection – Leave to appeal granted – Appeal dismissed.
On 26 February 2024, the applicant pleaded guilty to one charge of aggravated burglary,[1] one charge of common assault,[2] one charge of theft,[3] two charges of threat to kill[4] and one charge of intentionally damage property.[5]
On 27 May 2024, the applicant was sentenced in the County Court of Victoria as follows:
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
1
Aggravated burglary
25 years’ imprisonment
Aggregate sentence on charges 1, 2, 3 and 6 of six months and 674 days’ imprisonment and a 2 year Community Corrections Order (‘CCO’) with supervision, treatment and rehabilitation, and Justice Plan conditions (‘Aggregate sentence’)
Base
2
Common assault
5 years’ imprisonment
3
Theft
10 years’ imprisonment
4
Make threat to kill
10 years’ imprisonment
3 months’ imprisonment
3 months
5
Make threat to kill
10 years’ imprisonment
3 months’ imprisonment
3 months
6
Intentionally damage property
10 years’ imprisonment
Aggregate sentence
Base
Total Effective Sentence:
12 months and 674 days’ imprisonment and a 2 year CCO with supervision, treatment and rehabilitation, and Justice Plan conditions.
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.
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Details
AGLC
Leslie v The King [2025] VSCA 13
Case
[2025] VSCA 13
Decision Date
CaseChat Overview and Summary
Leslie appealed against his conviction and sentence for multiple criminal offences, including aggravated burglary, common assault, theft, and threats to kill. The Koori Court Division of the Supreme Court of Victoria heard the appeal and examined whether the trial judge erred in his assessment of the applicant’s moral culpability and the overall sentencing process. The appeal raised questions about whether the trial judge appropriately considered the applicant's disadvantaged background and intellectual impairments when determining the sentence.
The court had to determine whether the trial judge failed to sufficiently recognise the reduced moral culpability of the applicant due to his disadvantaged background and intellectual impairments. Additionally, the appeal challenged whether the trial judge made factual errors that impacted the sentencing outcome and whether the sentence was manifestly excessive. The court also considered if the trial judge adequately balanced the mitigating factors with the need for community protection.
The court found that the trial judge had considered the totality of the psycho-social evidence and did not need to explicitly identify a causal connection between the applicant's childhood deprivation and his offending behaviour. The court held that any factual errors made by the trial judge were immaterial to the sentencing decision. Furthermore, the court concluded that the sentence was not manifestly excessive, as the trial judge had given appropriate weight to the mitigating factors and balanced them with the need for community protection. The appeal was granted leave but ultimately dismissed.
The court made no order for a new trial or sentencing hearing but confirmed the original sentence imposed by the trial judge.