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R v Leighton

R v Leighton

Case [2016] NSWCCA 215 7 October 2016

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Leighton [2016] NSWCCA 215
Hearing dates: 30 September 2016
Date of orders: 07 October 2016
Decision date: 07 October 2016
Before: Hoeben CJ at CL at [1]
Harrison J at [52]
Campbell J at [53]
Decision:
Crown appeal dismissed.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – offender convicted after trial of five historical indecent assault offences – three victims being young women aged between 10 and 12 – offender was a dentist who touched victims while they were affected by nitrous oxide gas – offender elderly and suffering significant ill health – application of sentencing practices prevalent at time of offending – whether sentence manifestly inadequate – Crown appeal dismissed.
Legislation Cited: Crimes Act 1900 – ss 6, 61E, 76
Crimes (Sentencing Act) Procedure Act 1999 – s 3A
Criminal Appeal Act 1912 – s 5D
Cases Cited: CMB v Attorney General for New South Wales [2014] HCA 9; 89 ALJR 407
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Harris v R [2015] NSWCCA 81
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
MPB v R [2013] NSWCCA 213; 243 A Crim R 576
Makarian v The Queen [2005] HCA 25; 228 CLR 357
Mill v R [1988] HCA 70; 166 CLR 59
Nguyen v The Queen [2016] HCA 17; 90 ALRJ 595
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Dinsdale [2000] HCA 54; 202 CLR 321
R v MJR [2002] NSWCCA 129; 54 NSWLR 368
R v XX [2009] NSWCCA 115; 195 A Crim R 38
Wong v The Queen [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Regina – Appellant Crown
Rodger Leighton - Respondent
Representation:
Counsel:
V Lydiard – Appellant Crown
L Fernandez - Respondent
Solicitors:
Solicitor for Public Prosecutions – Appellant Crown
SE O’Connor - Respondent

File Number(s): 2012/282749
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

10 June 2016

Before:

Craigie SC DCJ

File Number(s):

2012/282749

Judgment

HOEBEN CJ at CL:

Proceedings

The Director of Public Prosecutions (the appellant) appeals under s 5D of the Criminal Appeal Act 1912 against the sentences imposed upon the respondent on 10 June 2016 by Craigie SC DCJ in the District Court of New South Wales after the respondent had been convicted by a jury of five counts of indecent assault.

The offences for which the respondent was sentenced were:

Counts 1, 2 and 3 – Indecent assault of a person under the age of 16 years contrary to s 76 of the Crimes Act 1900 for which the maximum penalty is imprisonment for 5 years (victim RC).

Count 4 – Indecent assault of a person under the age…

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 Leighton

Details

AGLC: R v Leighton [2016] NSWCCA 215
Case: [2016] NSWCCA 215
Decision Date: 07 October 2016

CaseChat Overview and Summary

The respondent, Leighton, was convicted after a trial of five historical indecent assault offences involving three young victims aged between 10 and 12. Leighton, a dentist, had administered nitrous oxide gas to the victims, taking advantage of their incapacitated state to commit the assaults. The court sentenced Leighton to a term of imprisonment with parole eligibility after a short period, which the Crown deemed manifestly inadequate. The Crown appealed the sentence, arguing that the original sentence did not reflect the seriousness of the crimes or appropriately consider the need for denunciation and deterrence.

The primary legal issue before the court was whether the original sentence was manifestly inadequate. The court considered the principles of sentencing for historical offences, the gravity of the crimes, and the need to ensure that the sentence reflects the community's standards of justice. The court also needed to weigh the offender's age and health against the necessity to provide a sentence that adequately punished the crimes and protected the community.

The court found that while the original sentence was lenient, it did not fall outside the range of reasonable sentencing options. The court emphasised that sentencing for historical offences must consider the context in which they were committed and the offender's current health and age. The court held that the sentence, while short, was not manifestly inadequate as it still imposed a significant punishment and provided some measure of deterrence and denunciation. Consequently, the Crown's appeal was dismissed, and the original sentence was upheld.

Orders