R v Leach - [2007] NSWSC 429

CITATION: R v LEACH [2007] NSWSC 429

HEARING DATE(S): 11.4.07-19.04.07
27.4.07

JUDGMENT DATE :
27 April 2007

JUDGMENT OF: Hulme J at 1

DECISION: I sentence you to imprisonment for a non-parole period of 4 years and 6 months commencing on 15 July 2005 with a balance of term of 3 years. I record as the date upon which it appears that you will become eligible for parole is 15 January 2010

PARTIES: Regina
Benjamin Anthony Leach

FILE NUMBER(S): SC 2006/2108

COUNSEL: Crown: Mr W Creasey
Prisoner: Mr T Golding

SOLICITORS: Crown: DPP of NSW
Prisoner: Legal Aid Commission of NSW

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IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HULME J
27 April 2007

2006/2108

REGINA v Benjamin Anthony LEACH

REMARKS ON SENTENCE

1 HULME J: The Prisoner stands for sentence for the manslaughter, by an unlawful and dangerous act, of his 7 week old daughter, Ikicia. He had been arraigned on a charge of murder but after a voir dire enquiry in the course of which the Crown abandoned reliance on two evidentiary aspects of its case and I ruled as inadmissible a third, the Crown elected to accept the plea in full satisfaction of the indictment. The maximum penalty prescribed for manslaughter is, by reason of s24 of the Crimes Act, 25 years imprisonment

2 Many of the acts relevant to sentencing are common ground, but some are not and require decisions by me. I acknowledge that insofar as matters going to the Prisoner’s criminality are to be used adversely to him, I must be satisfied of them beyond reasonable doubt. Insofar as matters go to mitigation, I need only be satisfied of them on the balance of probabilities.

3 The deceased was born on 21 May 2005. She died on 13 July 2005. In the early hours of that morning, the deceased woke and began to cry. By arrangement the parents took it in turns to attend to the child on these occasions and the Prisoner got out of bed and took the deceased to the lounge room, placing her on the lounge. I am not able to find whether it was the Prisoner’s turn or whether he rose out of a desire to spare the child’s mother. He bottle fed the child and took steps to bring up wind. However, the deceased did not settle and continued to cry. Efforts by the Prisoner to induce the child to take a dummy were also unsuccessful.

4 The Prisoner sat on the child. The crying stopped, the evidence suggesting that the child stopped breathing at that time. The Prisoner rushed into the shared bedroom and woke Ikicia’s mother informing her of the stoppage of breathing. He dialled 000 and the ambulance arrived some time later. Until the ambulance arrived and in an attempt to revive the deceased, her mother to some extent but the Prisoner mainly, undertook CPR in accordance with instructions received from the 000 operator and knowledge the Prisoner had…

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 R v Leach

Details

AGLC: R v Leach [2007] NSWSC 429
Case: [2007] NSWSC 429
Decision Date: 27 April 2007

CaseChat Overview and Summary

The Supreme Court of New South Wales heard a case against Benjamin Anthony Leach for the manslaughter of his 7-week-old daughter, Ikicia. Leach had been arraigned on a charge of murder, but after a voir dire enquiry and the Crown abandoning reliance on two evidentiary aspects of its case, Leach pleaded guilty to manslaughter. The court had to decide on sentencing, taking into account various legal issues such as the circumstances of the offence, the impact of Leach's intellectual disability and psychiatric conditions, and the principles of sentencing. The court found Leach to be of good character and noted his remorse and efforts to improve himself while in custody. Considering all the evidence and the principles of sentencing, the court sentenced Leach to imprisonment for a non-parole period of 4 years and 6 months, with a balance of term of 3 years. The date upon which Leach will become eligible for parole is 15 January 2010.

Orders