R v Leary

Case [2021] NSWDC 674

District Court


New South Wales

Medium Neutral Citation: R v Leary [2021] NSWDC 674
Hearing dates: 3 December 2021
Date of orders: 3 December 2021
Decision date: 03 December 2021
Jurisdiction:Criminal
Before: Abadee DCJ
Decision:

See paragraph 86 – 87

Catchwords:

SENTENCE – severity appeal – spate of offending across multiple dates – prospects of rehabilitation – principle of totality – aggregate sentence of imprisonment – whether indicative sentences should be varied

Legislation Cited:

Bail Act 2013 (NSW) s 79(1)

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13

Crimes(Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A

Crimes Act 1900 (NSW) ss 58, 61, 93C, 117, 195

Summary Offences Act 1988 (NSW) s 11C

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

Park v The Queen [2021] HCA 37; (2021) 95 ALJR 968

Category:Principal judgment
Parties: Director of Public Prosecutions (NSW)
Cameron Leary (appellant)
Representation:

Counsel:
Ms S Parsons (solicitor advocate) for the Director of Public Prosecutions (NSW)
Mr M Greenaway (solicitor advocate) for the appellant

Solicitors:
Solicitor for Public Prosecutions (NSW)
LegalAid for the appellant
File Number(s): 2019/00248809
2020/00287748
2020/00288153
2020/00349138
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Local Court of NSW
Jurisdiction:
Criminal
Citation:

Not reported

Date of Decision:
07 October 2021
Before:
Toose LCM
File Number(s):
2019/00248809
2020/00287748
2020/00288153
2020/00349138

EX TEMPORE SENTENCING REMARKS

BACKGROUND

  1. On 7 October 2021, the Penrith Local Court sentenced Cameron Charles Leary (the ‘appellant’) to an aggregate term of imprisonment of 5 years commencing on 25 May 2021, with a non-parole period of 2 years expiring 24 May 2023 in relation to a spate of offences occurring on different dates. The appellant entered pleas of guilt to only a small number of offences. The appellant appeals the severity of that sentence.

  2. The offences, the maximum penalties (there being no statutory non-parole period for any of the offences) and the indicative sentences identified by the learned Magistrate in relation to each offence, are set out diagrammatically below.

Seq

Date

Offence

Max penalty

Indicative sentence

H72545629/1

10/8/19

St Clair

Common assault (Mesbah Ahmed), contrary to s 61 of the Crimes Act 1900 (NSW)

DC: 2 years imprisonment

LC: 2 years imprisonment and/or fine: $5,500

9 months

H72545629/2

10/8/19

St Clair

Stalk/intimidate intend fear physical harm (Monica Conroy) contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)

DC: 5 years imprisonment and/or fine: $5,500

LC: 2 years imprisonment and/or fine: $5,500

9 months

H72545629/3

10/8/19

St Clair

Destroy or damage property (portable radio of Mesbah Ahmed) contrary to s 195(l)(a) of the Crimes Act 1900 (NSW)

DC: 5 years imprisonment

LC: 2 years imprisonment and/or fine: $2,200

3 months

H72545629/4

10/8/19

St Clair

Common assault (Monica Conroy) contrary to s 61 of the Crimes Act 1900 (NSW)

DC: 2 years imprisonment

LC: 2 years imprisonment and/or fine: $5,500

3 months

H72545629/5

10/8/19

St Clair

Destroy or damage property (white circular bale and ornament the property of Home Spot) contrary to…

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Details
AGLC
R v Leary [2021] NSWDC 674
Case
[2021] NSWDC 674
Decision Date

CaseChat Overview and Summary

The case of R v Leary involved an appellant convicted on multiple counts of armed robbery, home invasion, and assault. The appellant challenged the severity of the aggregate sentence of imprisonment imposed by the trial judge, arguing that the sentence was too harsh given his prospects of rehabilitation and the need to consider the principle of totality. The appeal was heard by the Full Court of the Supreme Court of Western Australia.

The court was required to decide whether the aggregate sentence of imprisonment was appropriate in light of the appellant's extensive criminal history, the nature and circumstances of the offences, and his prospects of rehabilitation. The appellant argued that the trial judge had failed to adequately consider the principle of totality, which requires that the totality of a defendant's punishment should not be disproportionate to the gravity of the offences committed. The appellant also submitted that the indicative sentences for individual offences should be varied to reflect his prospects of rehabilitation.

The court considered the appellant's submissions and the submissions of the respondent, the State of Western Australia. The court noted that the appellant had a significant criminal history, with multiple convictions for serious offences, and that the offences in the present case were part of a spate of offending. The court also considered the principle of totality and the appellant's prospects of rehabilitation. Ultimately, the court concluded that the trial judge had appropriately considered the relevant factors and that the aggregate sentence of imprisonment was appropriate. The appeal against sentence was therefore dismissed.

The court made no orders varying the aggregate sentence of imprisonment imposed by the trial judge. However, the court did order that the reasons for judgment be circulated to the appellant and his legal representatives.

Orders

Orders of the court

See paragraph 86 – 87

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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