R v Leahy - [2004] NSWCCA 148

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Leahy [2004] NSWCCA 148 revised - 18/05/2004

FILE NUMBER(S):
60515/03

HEARING DATE(S): 10/05/04

JUDGMENT DATE: 13/05/2004

PARTIES:
Crown
Darren Leahy

JUDGMENT OF: Hodgson JA Levine J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/1169

LOWER COURT JUDICIAL OFFICER: Nicholson DCJ

COUNSEL:
G Rowling - Crown
J Stratton QC - Respondent

SOLICITORS:
S Kavanagh - Crown
S O'Connor - Respondent

CATCHWORDS:
CRIMINAL LAW: Crown appeal - adjournment under s11 of the Crimes (Sentencing Procedure) Act - serious offence - unfavourable record - prospects of rehabilitation - fulltime custodial sentence still likely.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60515/03
HODGSON JA
LEVINE J
HIDDEN J
Thursday, 13 May, 2004

REGINA v Darren LEAHY

Judgment

THE COURT: On 10 December 2003 at Penrith District Court the respondent, Darren Leahy, pleaded guilty before Nicholson DCJ to a charge of armed robbery. His Honour determined that the appropriate course was to adjourn the proceedings pursuant to s11 of the Crimes (Sentencing Procedure) Act, and he gave reasons for his decision on that day. On the following day he adjourned the proceedings to 12 March 2004 and allowed the respondent bail, conditioned that he submit to the supervision of the Probation and Parole Service and undertake the drug rehabilitation program provided by the We Help Ourselves organisation (WHOS) at Chippendale.
On 12 December 2003 the Director of Public Prosecutions appealed against that order. On 10 May 2004 we dismissed the appeal, undertaking to give our reasons later. These are those reasons.
On 12 March 2004 the respondent appeared again before Judge Nicholson. In the light of evidence of his satisfactory progress at WHOS, and also being aware that the Director had lodged an appeal, his Honour adjourned the proceedings to 11 June 2004. However, it was his Honour’s reasons of 10 December 2003 which were challenged in the appeal.
It is unnecessary to recite the facts of the offence in any detail. It is sufficient to say that in the early evening of 25 June 2003 the respondent went to the Subway restaurant in Mulgoa Road, Jamisontown, disguised by a balaclava and armed with a tomahawk. The restaurant was staffed at the time by two young women, aged seventeen and eighteen. The respondent displayed the tomahawk to the seventeen year old woman, demanded money, was given $600 from the cash register and left. There were patrons of the restaurant present at the time, including children. The incident caused great distress to the seventeen year old victim, who was terrified and who afterwards had difficulty sleeping, as well as attending to her study for the higher school certificate.
The offence was undoubtedly serious, a fact about which his Honour made no bones in his reasons for the adjournment. Moreover, the respondent was thirty five years old at the time of the offence and was by no means a first offender. He…

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 Leahy

Details

AGLC: R v Leahy [2004] NSWCCA 148
Case: [2004] NSWCCA 148
Decision Date: 13 May 2004

CaseChat Overview and Summary

The case of R v Leahy involved the appellant who was convicted of a serious offence and subsequently sentenced. The Crown, dissatisfied with the sentence, sought an appeal. The matter was heard in the Court of Criminal Appeal in New South Wales. The Crown argued that the sentence imposed was manifestly inadequate and sought an adjournment under section 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to impose a more appropriate sentence.

The central legal issues before the court were whether the original sentence was manifestly inadequate and if an adjournment under section 11 was warranted. The court had to consider the nature and seriousness of the offence, the appellant's criminal history, and the prospects of rehabilitation in determining the appropriate sentence. The court also had to assess whether the sentence imposed was so unacceptably lenient that it required correction by the appellate court.

In delivering the judgment, the court held that while the original sentence was lenient, it was not manifestly inadequate. The court considered the appellant's prospects of rehabilitation and his otherwise favourable record, which did not warrant a full-time custodial sentence. The court found that the sentence imposed was appropriate and did not result in a substantial miscarriage of justice. Consequently, the Crown's appeal was dismissed, and the original sentence was upheld. The court emphasised that despite the appellant's serious offence and unfavourable record, the prospects of rehabilitation were sufficient to justify a non-custodial sentence at that time.

Orders