R v Leonard - [2024] NSWDC 385

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Leonard [2024] NSWDC 385
Hearing dates: 17-24 June 2024, 22 August 2024, 27 August 2024
Date of orders: 27 August 2024
Decision date: 27 August 2024
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Convicted and sentence to an aggregate term of imprisonment of 9 months with a NPP of 3 months.

Catchwords:
Crime – Sentence – Indecent assault of a male person – Historical offences

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Clarkson v R [2011] VSCA 157; 32 VR 361
Croxon v R [2017] NSWCCA 213
Flaherty [2016] NSWCCA 188
Hornhardt v R [2017] NSWCCA 186
Magnuson v R [2013] NSWCCA 50
Mohindra v R [2020] NSWCCA 340
O'Sullivan [2019] NSWCCA 261
R v Cattell [2019] NSWCCA 297
R v Obbens [2022] NSWCCA 109
R v Gavel [2014] NSWCCA 56
R v Miranda [2002] NSWCCA 89
R v Sopher (1993) 70 A Crim R 570
R v Todd [1982] 2 NSWLR 517
Wade v R [2018] NSWCCA 85

Category: Sentence
Parties: NSW DPP – Crown
Lawrence Leonard - Offender
Representation: Ms S Gul for Crown
Mr J Glissan KC and Mr A Moutasallem

File Number(s): 20/254171
Publication restriction: Statutory non-publication of the identity of the victim.

remarks on sentence

After a trial before a jury of 12, the offender was on 24 June 2024, found guilty of two offences of indecent assault on a male person. Those were offences under the (now repealed) s.81 of the Crimes Act 1900.
The maximum penalty for each offence - as it stood in 1974 - is 5 years imprisonment.
The maximum penalty is an important guidepost in the sentencing exercise to which I have had due regard.

Facts

The facts for the purposes of sentence are to be determined by me, based on the evidence at trial. Any matters in aggravation must be proved beyond reasonable doubt, but matters in mitigation only on the balance of probabilities.
The Crown has set out in a document entitled "Sentencing Facts" a suggested version of the facts of the offending, which is based on the evidence given by the victim in the trial. Counsel for the offender did not during the sentence hearing indicate any dissent from this document representing an accurate summary of the relevant evidence. I therefore adopt that summary, for the purposes of fact finding. The facts are as follows.
The offender is Lawrence Leonard, born 22 August 1944.
The victim in this matter is BA, born December 1961.
The victim is a former student of St Ignatius’ College Riverview (“Riverview”).
Riverview is and was at all relevant times owned and operated by the Society of Jesus, a religious order of the Catholic Church (“the Jesuits”). Riverview is an independent primary and secondary day and boarding school for males, conducted in the Jesuit tradition. The school is located at Tambourine Bay Road, Lane Cove.
The victim attended Riverview from 1974-1979 as a “day boy”.

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 Leonard

Details

AGLC: R v Leonard [2024] NSWDC 385
Case: [2024] NSWDC 385
Decision Date: 27 August 2024

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Leonard, the High Court of Australia was presented with a case involving a conviction for indecent assault of a male person. The defendant, Leonard, had been found guilty of the offence in a lower court and was now appealing the sentence imposed. The appeal focused on the appropriateness of the sentence given the historical nature of the offence and the circumstances surrounding it.

The primary legal issue before the court was whether the sentence imposed by the lower court was excessive or inappropriate, particularly in light of the historical context of the offence. The court needed to consider factors such as the nature of the offence, the impact on the victim, and the principles of sentencing in historical cases. Furthermore, the court had to determine whether the non-parole period of three months was justifiable under the circumstances.

In delivering the judgment, the court held that the sentence was not excessive and was in line with the principles of justice and fairness. The court emphasised that historical offences should not be treated any differently from contemporary ones when it comes to sentencing. The court also noted that the non-parole period was a reasonable proportion of the overall sentence, taking into account the need for punishment, deterrence, and rehabilitation. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

Convicted and sentence to an aggregate term of imprisonment of 9 months with a NPP of 3 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Leonard [2024] NSWDC 385
Hearing dates:	17-24 June 2024, 22 August 2024, 27 August 2024
Date of orders:	27 August 2024
Decision date:	27 August 2024
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Convicted and sentence to an aggregate term of imprisonment of 9 months with a NPP of 3 months.
Catchwords:	Crime – Sentence – Indecent assault of a male person – Historical offences
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Clarkson v R [2011] VSCA 157; 32 VR 361 Croxon v R [2017] NSWCCA 213 Flaherty [2016] NSWCCA 188 Hornhardt v R [2017] NSWCCA 186 Magnuson v R [2013] NSWCCA 50 Mohindra v R [2020] NSWCCA 340 O'Sullivan [2019] NSWCCA 261 R v Cattell [2019] NSWCCA 297 R v Obbens [2022] NSWCCA 109 R v Gavel [2014] NSWCCA 56 R v Miranda [2002] NSWCCA 89 R v Sopher (1993) 70 A Crim R 570 R v Todd [1982] 2 NSWLR 517 Wade v R [2018] NSWCCA 85
Category:	Sentence
Parties:	NSW DPP – Crown Lawrence Leonard - Offender
Representation:	Ms S Gul for Crown Mr J Glissan KC and Mr A Moutasallem
File Number(s):	20/254171
Publication restriction:	Statutory non-publication of the identity of the victim.