R v Leonard - [2013] NZHC 460

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-012-003312 [2013] NZHC 460

REGINA

v

SHAUN KAHU LEONARD

Hearing: 8 March 2013

Appearances: A Stevens for the Appellant
R D Smith for the Crown

Judgment: 8 March 2013

JUDGMENT OF FOGARTY J

[1] Mr Leonard, you appear for sentence on one charge of assault with intent to rape, which attracts a maximum penalty normally of 10 years imprisonment.

[2] In September last year at about 9.30 am, a 25 year old female was observing local birdlife at Jubilee Park. You had driven to the same park, armed with a knife, with the intention of finding a female to have sexual intercourse with. When you arrived at the park, you saw her on one of the tracks, and waited for an opportunity to attack her. After a short wait, you carried out your attack. Grabbing her as she walked down the track. You grabbed onto her shoulders with both of your hands. You pushed her backwards, causing her to fall onto her back onto a grassy area beside the track. When she fell on her back, you lay on top of her body. You pulled her top open, placing your hand on her breast. You kissed her forehead. During this
time you were holding the knife in your hand. She was struggling and yelling at you

R V LEONARD HC DUN CRI-2012-012-003312 [8 March 2013]

to get off. You did get off the victim, and you fled the scene when you saw her reach for her cell phone to call the police.

[3] Although she suffered very little in the way of any physical injuries, she suffered emotional trauma which was severe. Quite understandable in the circumstances.

[4] I have heard today that you gave yourself in to the police. In fact, that was the reason why you have been apprehended. You admitted these facts that I have just outlined, and you stated that it was your intention to find a woman at the park to have sex with. That it was your intention to rape her. You said you did it because you “couldn’t get a missus”.

[5] Mr Leonard, you have recently come out of prison for a very serious and prolonged sexual offence with another woman you did not know, who lived in your apartment building. You did not know in the sense that you did not have a relationship with her. Because of the serious nature of that offending, Judge O’Driscoll in the District Court was uncertain as to whether or not you should be sentenced in the normal way for this offence, or whether it might be a case where it is in the interests of the safety of the community that you be sentenced for Preventive Detention. He removed, therefore, the sentencing to the High Court and, in accordance with the Sentencing Act, requested two clinical reports examining whether or not you should be sentenced to Preventive Detention.

[6] If you are sentenced to Preventive…

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 [2013] NZHC 460
Case: [2013] NZHC 460
Decision Date: 8 March 2013

CaseChat Overview and Summary

Shaun Kahu Leonard appeared before the High Court in Dunedin for sentencing on a charge of assault with intent to rape, which carries a maximum penalty of 10 years imprisonment. The incident occurred in September of the previous year at Jubilee Park, where Leonard, armed with a knife, attacked a 25-year-old woman, intending to have sexual intercourse with her. He grabbed her, forced her to the ground, and attempted to assault her before she managed to escape and call the police. Although the victim suffered minimal physical injuries, she experienced significant emotional trauma.

The court needed to decide whether Leonard should be sentenced to Preventive Detention under section 89 of the Sentencing Act, which applies to individuals who pose a significant risk to the safety of the community. This decision required consideration of two clinical reports from health assessors. The starting point for Leonard's sentence was between 6 to 7 years, increased by 18 months due to his previous convictions and the fact that this offence occurred while he was on parole. After applying a 25% credit, the court determined that the sentence would likely range from 5 and a half to 6 and a half years. The court had to assess whether Leonard would likely commit another serious sexual offence if released at the end of this sentence.

Both clinical reports indicated that Leonard had a long history of behavioural and psychiatric issues, starting from early childhood, and had received various forms of intervention throughout his life. Despite these interventions, Leonard reoffended shortly after his release from prison. The reports concluded that Leonard remained at high risk of sexual recidivism and would likely continue to engage in similar offending until he demonstrated significant progress in addressing his risk factors. The court was also provided with the HCR20 risk factors, 18 of which were present in Leonard's case, further indicating a high risk of future offending. Based on these findings, the court was satisfied that Leonard would likely commit another qualifying offence if released, thus justifying a sentence of Preventive Detention with a minimum period of imprisonment of 5 years.

Orders