R v Leach

[2003] SASC 92

R v LEACH
[2003] SASC 92

Court of Criminal Appeal:  Perry, Nyland and Bleby JJ

1. PERRY J.           The appellant appealed by leave against the sentence imposed upon him in the District Court following his conviction by a jury of one count of indecent assault and four counts of unlawful sexual intercourse with a person under 12.

2. On 20 March 2003 the Court dismissed the appeal, reserving the right to publish reasons later.

3. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, the sentencing judge imposed a single sentence on all five counts. He sentenced the appellant to imprisonment for 10 years and fixed a non-parole period of 6 years. He directed that the head sentence and non-parole period both run from the date upon which the appellant was taken into custody, that is, from 14 November 2002.

4. The appellant initially sought to raise three grounds of appeal, but was given leave to pursue one ground only, namely that the “learned judge failed to give adequate weight to the appellant’s mental disorders and his response to medication since offending”.

5. At the time of the offending the appellant was 24 and 25 years of age. At the time of sentencing, he was aged 30 years.

6. At the relevant time the victim was a young boy aged just 10 years. The offences occurred on four separate occasions over a period of about two weeks.

7. At the time the appellant was living on his own in a house in Whyalla. He advertised his services as a baby sitter, and the victim’s mother engaged him in that capacity to mind the victim and his younger sister.

8. Eventually, the appellant persuaded the victim to join a children’s baseball team which he was promoting. The victim attended training with the team in the company of the appellant.

9. The incident the subject of the first count occurred after a training session. The victim accompanied the appellant to the appellant’s home, an arrangement having been struck with the victim’s parents that he would stay the night there. The appellant invited the victim into his bedroom, where he read passages from a pornographic book, and then asked the victim to drop his jeans and underpants. He then took hold of the victim’s penis. This constituted the indecent assault.

10. Shortly afterwards, the appellant committed an act of fellatio on the victim, which was the subject of count 2.

11. Similar acts of fellatio occurred on other days on the occasions the subject of the remaining counts.

12. It seems likely that the conduct would have continued had it not been for the fact that the victim told his parents that he did not wish to play baseball any further with the club with which the appellant was associated, and he later joined another baseball team. The victim’s parents no longer used the appellant as a child minder.

13. It was not until about three years later that the complainant first made a complaint about the matter, which resulted in the laying of…