Leonard v R - [2013] NZCA 553

IN THE COURT OF APPEAL OF NEW ZEALAND

CA247/2013
[2013] NZCA 553

BETWEEN	SHAUN KAHU LEONARD Appellant
AND	THE QUEEN Respondent

Hearing:	30 September 2013
Court:	O'Regan P, Panckhurst and MacKenzie JJ
Counsel:	M A Stevens for Appellant M J Grills for Respondent
Judgment:	11 November 2013 at 3 pm

JUDGMENT OF THE COURT

A Time for appealing is extended.

B The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

Introduction

The appellant pleaded guilty in the District Court in Dunedin to one count of assault with intent to rape.[1] At sentencing, Judge O’Driscoll noted that preventive detention had not been addressed. He determined that the appellant should be referred to the High Court for sentence, and the requisite reports were ordered.[2]
[1]Crimes Act 1961, s 129(2).
[2]R v Leonard DC Dunedin CRI-2012-012-3312, 27 November 2012.
The appellant was sentenced by Fogarty J to preventive detention, with a minimum non-parole period of five years.[3]
[3]R v Leonard [2013] NZHC 460.
The appellant appeals against that sentence. His notice of appeal was filed out of time and an extension is sought. The delay was short and counsel for the respondent accepts that there is no prejudice. We grant the extension sought.

Issue

Counsel for the appellant accepts that the preconditions in s 87(2) of the Sentencing Act 2002 to the imposition of preventive detention are met. The essence of the appeal is that the sentencing Judge did not have sufficient regard to s 87(4)(e), the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

Legislation

The relevant subsections of s 87 of the Sentencing Act provide:
(2) This section applies if—
(a)a person is convicted of a qualifying sexual or violent offence (as that term is defined in subsection (5)); and
(b)the person was 18 years of age or over at the time of committing the offence; and
(c)the court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date (as specified in subpart 3 of Part 1 of the Parole Act 2002) of any sentence, other than a sentence under this section, that the court is able to impose.
...
(4)When considering whether to impose a sentence of preventive detention, the court must take into account—
(a)any pattern of serious offending disclosed by the offender's history; and
(b)the seriousness of the harm to the community caused by the offending; and
(c)information indicating a tendency to commit serious offences in future; and
(d)the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and
(e)the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society

Sentence

In his sentencing remarks, Fogarty J discussed at some length the application of the preconditions in s 87(2), and whether he was satisfied that the appellant was likely to commit another qualifying…

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 Leonard v R

Details

AGLC: Leonard v R [2013] NZCA 553
Case: [2013] NZCA 553
Decision Date: 11 November 2013 at 3 pm

CaseChat Overview and Summary

The appellant, Shaun Kahu Leonard, appealed against a sentence of preventive detention imposed by the High Court at Christchurch, with a minimum non-parole period of five years. The sentence was imposed following the appellant's guilty plea to one count of assault with intent to rape. The appeal against sentence was heard by the Court of Appeal of New Zealand, comprising O'Regan P, Panckhurst and MacKenzie JJ. The legal issue before the Court was whether the sentencing Judge adequately considered all relevant factors, particularly the principle that a lengthy determinate sentence is preferable if it provides adequate protection for society.

The Court of Appeal found that the sentencing Judge did not expressly address the factors set out in section 87(4) of the Sentencing Act 2002, which are mandatory considerations when imposing a sentence of preventive detention. These factors include the pattern of serious offending, the seriousness of harm to the community, information indicating a tendency to commit serious offences in future, the absence of efforts by the offender to address the causes of the offending, and the principle that a lengthy determinate sentence is preferable if it provides adequate protection for society. The Court noted that the appellant had a history of serious offending, including a previous charge of rape and associated offending, and there was a high risk of future sexual reoffending. The Court concluded that a lengthy determinate sentence would not provide adequate protection for society, and therefore, a sentence of preventive detention was required.

The appeal against sentence was dismissed, and the sentence of preventive detention with a minimum non-parole period of five years was upheld. The Court noted that the appellant's previous gains in treatment during imprisonment had not been sustained upon release, and there was insufficient confidence that treatment during a finite term of imprisonment would mitigate the risk to an acceptable level. The Court was concerned that a finite sentence may not be sufficient to bring the appellant to a realisation of the need to address his offending so as to participate meaningfully in treatment. The Court found that the minimum period imposed of five years was the statutory minimum, and therefore, the appeal was dismissed.

Orders