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7
Court of Criminal Appeal 1 April 2008

LEACH v THE QUEEN

[2008] NSWCCA 73

Also reported as (2008) 183 A Crim R 1
Homicide
CRIMINAL APPEAL APPEAL AGAINST SENTENCE EXERCISE OF SENTENCING DISCRETION WHEN APPELLATE INTERVENTION WARRANTED NON PUBLICATION ORDER

Citation: Leach v The Queen [2008] NSWCCA 73
Court: New South Wales Court of Criminal Appeal
Date: 1 April 2008
Judge(s): Basten JA; Hidden J; Barr J (dissenting)

Background

The appellant pleaded guilty to the manslaughter of his seven-week-old child. In the early hours of 13 July 2005, the child awoke and was crying. The appellant attempted to settle her but, when she continued to cry, he sat on the child. She stopped crying and stopped breathing. The appellant called an ambulance and attempted resuscitation, but the child could not be saved.

At first instance, Hulme J sentenced the appellant to 7.5 years' imprisonment with a non-parole period of 4.5 years. The sentencing judge took into account, on a Form 1 (a document listing additional offences to be considered but not separately sentenced), two prior assaults on the same child. Psychological testing had established that the appellant's intellectual functioning and coping skills were extremely low, and that at the time of the offence he was suffering from social anxiety and a mild depressive disorder.

The appellant sought leave to appeal to the Court of Criminal Appeal, contending the sentence was manifestly excessive having regard, among other things, to his intellectual disability, mental health conditions, remorse, and prospects of rehabilitation.

  • Whether the sentence imposed by the primary judge was manifestly excessive or demonstrated error warranting appellate intervention.
  • How an offender's intellectual disability and mental health conditions should affect the assessment of moral culpability.
  • How those conditions should affect the weight given to general and specific deterrence in sentencing.
  • Whether the primary judge had erred in drawing an inference of serious moral failure from the Form 1 prior assaults, given the appellant's psychological profile.
  • The application of the non-publication provisions under s 11 of the Children (Criminal Proceedings) Act 1987 (NSW) where the child victim is deceased.

Decision

The majority (Basten JA and Hidden J) allowed the appeal and reduced the sentence. Both judges found that the primary judge had erred in treating the Form 1 offences as evidence of serious moral failure. The psychological evidence did not support the inference that the appellant had sufficient insight into his earlier loss of control to have been meaningfully forewarned about the risk of further harm. Once that factual inference was removed, the sentence required reduction.

The majority also held that this manslaughter sat at the lower end of the objective gravity range for offences of its kind. The appellant's congenital intellectual deficits and his mental health conditions at the time of the offence substantially explained his conduct, reduced his moral culpability, and diminished the relevance of general deterrence. The Court applied principles derived from The Queen v Verdins [2007] VSCA 102, which recognise that mental disorder can reduce the significance of general deterrence and, in some cases, increase the focus on specific deterrence or community protection. Here, the appellant was found unlikely to re-offend and had strong rehabilitation prospects.

Hidden J further emphasised that the appellant was a young man of prior good character who had demonstrated genuine remorse. He noted that, even taking the Form 1 assaults into account, they would not, standing alone, have warranted a custodial sentence given the background of the appellant's intellectual and emotional deficits. The overall picture called for appellate intervention.

Barr J dissented. His Honour acknowledged the singular and difficult facts of the case but was not persuaded that the original sentence fell outside the proper range of the sentencing judge's discretion.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; sentence passed by Hulme J on 27 April 2007 quashed.
  • Substituted sentence of 6 years' imprisonment, comprising:
  • Non-parole period of 3 years and 6 months, commencing 15 July 2005 and expiring 14 January 2009.
  • Balance of term of 2 years and 6 months, commencing 15 January 2009 and expiring 14 July 2011.

Key Takeaways

  • Appellate intervention in sentencing requires the applicant to demonstrate error or manifest excess; the mere fact that reasonable minds might differ on the appropriate sentence does not, by itself, justify interference.
  • An offender's intellectual disability and mental health conditions are directly relevant to the assessment of moral culpability and to the weight properly given to general and specific deterrence, consistent with the principles established in Verdins.
  • Where psychiatric evidence does not support a finding that an offender had genuine insight into prior conduct, a sentencing court cannot use that prior conduct to establish serious moral failure as an aggravating feature.
  • The Court of Criminal Appeal confirmed that manslaughter encompasses a wide range of objective gravity, and that individual circumstances, including cognitive and psychiatric impairment, must be carefully weighed in placing an offence within that range.
  • Under s 11 of the Children (Criminal Proceedings) Act 1987 (NSW), the purpose of prohibiting publication of a child victim's name is less straightforward where the child is deceased, and the Court noted the provision's application in such circumstances is not self-evident.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 11
- Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6
- Constitution (Cth), s 73

Cases:
- The Queen v Verdins [2007] VSCA 102; 16 VR 269 (applied)
- House v The King (1936) 55 CLR 499
- Whittaker v The King (1928) 41 CLR 230
- Skinner v The King (1913) 16 CLR 336
- R v Engert (1995) 84 A Crim R 67
- DB v Regina [2007] NSWCCA 27; 167 A Crim R 393
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Courtney v The Queen [2007] NSWCCA 195; 172 A Crim R 371
- R v Elliott; R v Blessington [2006] NSWCCA 305; 68 NSWLR 1
- R v Blacklidge (12 December 1995, unreported)
- R v Trevenna [2004] NSWCCA 43
- Regina v Hoerler [2004] NSWCCA 184; 147 A Crim R 520
- R v Woodland [2001] NSWSC 416
- R v Rowe [2007] NSWSC 300
- R v Hemsley [2004] NSWCCA 228
- R v PP [2003] VSCA 100; 142 A Crim R 369
- R v Storey [1998] 1 VR 359
- Webb v O'Sullivan [1952] SASR 65