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R v Leahy

R v Leahy

Case [2019] NZHC 290 28 February 2019

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NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2017-085-3042

[2019] NZHC 290

THE QUEEN

v

KEVIN PATRICK LEAHY

Hearing: 28 February 2019

Counsel:

J M O’Sullivan for Crown B Crowley for Defendant

Sentencing:

28 February 2019

SENTENCING NOTES OF THOMAS J

Introduction

[1] Mr Leahy, you appear for sentence having been found guilty by a jury of one charge of assault with intent to commit rape.1

[2] In sentencing you, I will first consider the appropriate sentence in the context of the facts of your offending, the impact on the victim, your personal circumstances,

1 Crimes Act 1961, s 129(2); maximum penalty 10 years’ imprisonment.

R v LEAHY [2019] NZHC 290 [28 February 2019]

and the pre-sentence and other reports. I will then consider whether that sentence is sufficient to meet the need to protect the community from you.

Facts

[3] In the early hours of 24 November 2017, you and the victim were in Cuba Mall, Wellington. The victim was extremely intoxicated. You grabbed her by the hair and threw her on the ground. You lay down next to her, attempted to kiss her, tried to pull her pants down and tried to knock her out by punching her in the face. You stood up to check no one else was present and then knelt down to remove the victim’s pants while she pushed you away forcibly with both hands.

[4] You tried to move the victim, who was semi-conscious at this stage. You picked her up from under her arms and dragged her behind a kiosk. She was repeatedly saying “no” and asking you to stop. You exposed her breasts, took down her pants and started to take off your own. You were interrupted by three members of the public who were passing by. They responded to the victim yelling for you to leave her alone. One of the witnesses reported hearing the victim refer to “rape” and one witnessed her fighting you off while sobbing. You pulled up your pants and left the scene. The police located you not far from where you left the victim.

[5] The victim suffered swelling, bruises and abrasions to her face, as shown in police photographs taken the night of your offending.

Views of the victim

[6] The victim was known to you, having met you through a mutual acquaintance. She has been homeless in the past and considers the streets her second home, often choosing to sleep there. She has not provided a victim impact statement but in her evidence at trial she said she felt violated by your actions.

Personal circumstances

[7] You are 59 years old. Your life has been one of hardship from the beginning. At the age of three, you were uplifted from your parents’ care by state officials, given concerns of neglect. From…

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 Leahy

Details

AGLC: R v Leahy [2019] NZHC 290
Case: [2019] NZHC 290
Decision Date: 28 February 2019

CaseChat Overview and Summary

The case of R v Leahy involved a sentencing hearing for Kevin Patrick Leahy, who had been found guilty of one charge of assault with intent to commit rape. The court heard evidence regarding the impact of the offence on the victim, Leahy's personal circumstances, and pre-sentence and other reports. The court had to consider the appropriate sentence in the context of the facts of the offending, the impact on the victim, Leahy's personal circumstances, and the pre-sentence and other reports. The court also had to consider whether that sentence was sufficient to meet the need to protect the community from Leahy.

The court found that Leahy's offending was aggravated by associated violence and abduction, vulnerability of the victim, extent of harm, and planning and premeditation. The court also considered the 2015 convictions for sexual connection with a young person, which warranted an uplift. The court found that Leahy had a high risk of reoffending with a high risk of harm to others. The court also considered Leahy's difficult background, which included abuse, neglect, and chronic alcohol abuse. The court found that Leahy's cognitive function was impaired, and he suffered from resting tremors in his hands.

The court found that Leahy was likely to commit another qualifying offence if released at the end of the finite sentence. The court considered the reports from the two health assessors who had assessed Leahy. The court found that Leahy posed a significant and ongoing risk of sexual offending, in particular in circumstances where he was using alcohol and was in the company of vulnerable females. The court concluded that Leahy's circumstances indicated he was in a category of persons with a high risk of committing serious sexual assault against adult women in the community.

The court imposed a sentence of preventive detention with a minimum period of imprisonment of five years. The court found that an MPI of five years in the context of a preventive detention sentence was appropriate, given the additional safeguards that such a sentence provides. The court considered that Leahy may be able to complete the necessary rehabilitation work within that period, particularly if meaningful treatment can address his alcoholism and other risk-related factors. The court also noted that the Parole Board can act as an additional mechanism to protect the safety of the community should concerns remain at the conclusion of Leahy's MPI.

Orders