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R v Leach

R v Leach

Case [2004] NTSC 60 12 November 2004

Criminal Liability

Sentencing

Admissibility of Evidence

Criminal Law

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[Back to Main List] [Back to NTSC 2004 List] The Queen v Leach [2004] NTSC 60

PARTIES: THE QUEEN

LEACH, Martin

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: 8312499

DELIVERED: 12 November 2004

HEARING DATES: 26 & 27 July and 26 & 27 October 2004

JUDGMENT OF: MARTIN (BR) CJ

CATCHWORDS:

CRIMINAL LAW
Sentencing – murder – rape – life imprisonment – Sentencing (Crime of Murder) Parole Reform Act 2003 – Part 5 Transitional Provisions – application by the Director of Public Prosecutions pursuant to s 19(5) – whether to refuse to fix a non-parole period – level of culpability.

CRIMINAL LAW
Evidence – matters relating to proof – future probabilities – likelihood of re-offending – whether determination of fact.

STATUTES
Act of Parliament – interpretation – Sentencing (Crime of Murder) Parole Reform Act 2003 – s 19(5) – whether community interest to be assessed at time of application.

Sentencing (Crime of Murder) Parole Reform Act 2003, s 18 and s 19
Tepper v Kelly (1987) 45 SASR 340 at 343; Tepper v Kelly (1988) 47 SASR 271 at 273; R v Harris (2000) 50 NSWLR 409 at 419, R v Coulston [1997] 2 CR 446 p 463; The Queen v Olbrich (1999) 199 CLR 270; applied.

Veen v The Queen [No 1] (1979) 143 CLR 458; Veen v The Queen [No 2] (1988) 164 CLR 465, p 473, 475; R v Sione Penisini [2003] NSWSC 892, para 82; R v Bell (1985) 2 NSWLR 466; Bugmy v The Queen (1990) 169 CLR 525; considered.

R v SLD [2003] NSWCCA 310; R v McNamara [2004] NSWCCA 42 at [25]; not followed [in part].

REPRESENTATION:

Counsel:
Plaintiff: R Wild QC & S Ozolins
Defendant: R Goldflam

Solicitors:
Plaintiff: DPP
Defendant: NTLAC

Judgment category classification: A
Judgment ID Number: Mar0415
Number of pages: 106

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Leach [2004] NTSC 60
No. 8312499

BETWEEN:

THE QUEEN
Plaintiff

AND:

MARTIN LEACH
Defendant

CORAM: MARTIN (BR) CJ

REASONS FOR JUDGMENT

(Delivered 12 November 2004)

INDEX

Introduction 3
History 3
The New Scheme 6
Transitional Provisions 11
Sentencing Principles 17
Burden of Proof 18
Future Probabilities - Facts 22
Maximum Penalty – Worst Category 26
Culpability 29
Relative Seriousness of the Offence 32
Material to be considered 33
Facts 36
Matters Personal 41
Different Versions 48
21 Years of Incarceration - Evidence 64
Psychological Assessment – 1999 68
Recent Psychiatric Assessment 72
Neuropsychological Assessment 81
Mental State – Conclusions 82
Differing Versions – Motivation – Conclusions 84
Remorse 89
Future Support 91
Victim Impact Statements 93
Findings 93
Summary 97
Determinations 102

Introduction
[1] This is an application by the Director of Public Prosecutions (“the Director”) pursuant to the provisions of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (“the Act”). The respondent is serving sentences of life imprisonment for…

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 [2004] NTSC 060
Case: [2004] NTSC 60
Decision Date: 12/11/2004

CaseChat Overview and Summary

The case of R v Leach involved a defendant who was convicted of murder and rape. The defendant sought to challenge the sentencing decision, particularly regarding the non-parole period. The matter was brought before the court, which needed to determine the appropriate legal issues pertinent to the case.

The primary legal issues centred around the application of the Sentencing (Crime of Murder) Parole Reform Act 2003, specifically section 19(5), which allows the Director of Public Prosecutions to apply for the court to refuse to fix a non-parole period. The court had to assess the defendant's level of culpability and the likelihood of re-offending to determine whether to refuse the fixing of a non-parole period. The court also needed to interpret the legislative intent behind section 19(5) and consider whether the community interest should be assessed at the time of the application or at the time of the offence.

The court found that the defendant's culpability was high due to the nature of the crimes committed, which involved significant violence and premeditation. The court also considered the likelihood of the defendant re-offending, which was deemed high based on the evidence presented. The court concluded that the community interest should be assessed at the time of the application, not at the time of the offence. Based on these findings, the court decided to refuse to fix a non-parole period.

The final order was that the court refused to fix a non-parole period for the defendant, aligning with the application of the Director of Public Prosecutions under section 19(5) of the Sentencing (Crime of Murder) Parole Reform Act 2003.

Orders