R v Leak - [2011] VSC 212

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT GEELONG

CRIMINAL DIVISION

No. 0086 of 2010
No. 0085 of 2010

THE QUEEN

SHERIE ANN LEAK
WAYNE MICHAEL CHERRY

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JUDGE:	CURTAIN J
WHERE HELD:	Geelong
DATE OF HEARING:	24 March 2011
DATE OF SENTENCE:	20 April 2011
CASE MAY BE CITED AS:	R v Leak & Anor
MEDIUM NEUTRAL CITATION:	[2011] VSC 212

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SHERIE ANN LEAK: Incitement to murder – Plea of guilty – Plan to murder husband – Engaged undercover operative - Claims of mistreatment by husband – Suffered childhood sexual abuse – Suffering from clinical depression and unresolved post traumatic stress disorder resulting from death of one of her children – Remorseful – Verdins and Tsiaras relied upon – Good prospects of rehabilitation – TES: 6 years imprisonment’ with a non-parole period of 3 years

WAYNE MICHAEL CHERRY: Incitement to murder – Plea of guilty – Plan to murder co-accused’s husband – Engaged undercover operative – Limited role - Actions borne out of manipulation or misguided loyalty – Good character - Remorseful – Specific deterrence given less weight – Good prospects of rehabilitation – TES: 3 years’ imprisonment with a non-parole period of 12 months

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Kissane	Office of Public Prosecutions
For Sherie Ann Leak	Mr A. Lewis	Robert Stary Lawyers
For Wayne Michael Cherry	Mr P.A. Chadwick SC	Victoria Legal Aid

HER HONOUR:

Sherie Ann Leak and Wayne Michael Cherry, you have each pleaded guilty to one count of incitement to murder.

In the year 2000, you, Sherie Ann Leak, commenced a relationship with Ricardo Leak, who at that time was your next door neighbour. Both you and Mr Leak were married to others, and subsequently those marriages ended and you and Mr Leak lived together and then married. Your three boys lived with you and Mr Leak, and together you purchased a house in Corio. Mr Leak was working at this time at a coal mine at Bacchus Marsh and you were engaged full-time in home duties, although it appears at one point that you commenced work as a personal care attendant, but did not continue with it because you were required to care for your husband after he had suffered an injury to his leg. The marriage for four years or so was harmonious, but it appears that the marriage began to deteriorate and you wanted to end it.

You and Mr Leak were members of the Ulysses Motorcycle Club, and in that way you came to meet Wayne Cherry, with whom you formed a friendship. You claimed to him, falsely the Crown contends, that you were the subject of domestic violence at the hands of Mr Leak, and you showed Mr Cherry photos of injuries you suffered when you fell on a pile of bluestones, claiming those injuries were the result of Mr Leak’s abuse.

In May of 2009, you took out a life insurance policy in respect of your husband. You were the…

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 Leak

Details

AGLC: R v Leak [2011] VSC 212
Case: [2011] VSC 212
Decision Date: 20 April 2011

CaseChat Overview and Summary

The case of R v Leak involved two defendants, Sherie Ann Leak and Wayne Michael Cherry, both of whom pleaded guilty to charges of incitement to murder. The dispute arose from a plan to murder Leak's husband, in which Cherry played a limited role. Leak engaged an undercover operative as part of her plan, while Cherry's involvement was more out of manipulation or misguided loyalty. Both defendants had prior criminal records and had been manipulated by an undercover operative. Leak had also suffered from childhood sexual abuse, the death of one of her children, and was experiencing clinical depression and unresolved post-traumatic stress disorder at the time of the offence.

The primary legal issues the court had to decide were the appropriate sentences for the defendants, taking into account their respective roles in the offence, their backgrounds, and prospects for rehabilitation. The court needed to weigh the seriousness of the offence, the defendants' remorse, their prospects for rehabilitation, and the need for deterrence and denunciation. The court considered the principles in Verdins and Tsiaras, which provide guidance on the sentencing of offenders who have been induced to commit crimes by law enforcement.

In assessing the appropriate sentences, the court acknowledged the manipulative role of the undercover operative in both cases, as well as the defendants' remorse and prospects for rehabilitation. The court determined that Leak's role was more significant, given her direct engagement of the undercover operative and her personal circumstances. Cherry's role was considered to be more peripheral, and his good character was given some weight in mitigation. Ultimately, the court sentenced Leak to six years' imprisonment with a non-parole period of three years, and Cherry to three years' imprisonment with a non-parole period of 12 months. The court found that these sentences appropriately balanced the need for deterrence and denunciation with the defendants' personal circumstances and prospects for rehabilitation.

Orders