R v Leahy [2004] NSWCCA 148

New South Wales Court of Criminal Appeal

CITATION : R v Leahy [2004] NSWCCA 148 revised - 18/05/2004 HEARING DATE(S) : 10/05/04 JUDGMENT DATE : 13 May 2004

JUDGMENT OF : Hodgson JA at 1; Levine J at 1; Hidden J at 1 DECISION : Appeal dismissed.

CATCHWORDS : CRIMINAL LAW: Crown appeal - adjournment under s11 of the Crimes (Sentencing Procedure) Act - serious offence - unfavourable record - prospects of rehabilitation - fulltime custodial sentence still likely. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Griffiths v The Queen (1977) 137 CLR 293 R v Di Gregorio [2004] NSWCCA 9 CASES CITED : R v Palu (2002) 134 ACrimR 174 R v Trindall (2002) 133 ACrimR 119 R v Williams [2004] NSWCCA 64 PARTIES : Crown Darren Leahy FILE NUMBER(S) : CCA 60515/03 COUNSEL : G Rowling - Crown J Stratton QC - Respondent SOLICITORS : S Kavanagh - Crown S O'Connor - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/1169 FILE NUMBER(S) : LOWER COURT Nicholson DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL

60515/03

HODGSON JA LEVINE J HIDDEN J

Thursday, 13 May, 2004 REGINA v Darren LEAHY Judgment 1 THE COURT: On 10 December 2003 at Penrith District Court the respondent, Darren Leahy, pleaded guilty before Nicholson DCJ to a charge of armed robbery. His Honour determined that the appropriate course was to adjourn the proceedings pursuant to s11 of the Crimes (Sentencing Procedure) Act, and he gave reasons for his decision on that day. On the following day he adjourned the proceedings to 12 March 2004 and allowed the respondent bail, conditioned that he submit to the supervision of the Probation and Parole Service and undertake the drug rehabilitation program provided by the We Help Ourselves organisation (WHOS) at Chippendale. 2 On 12 December 2003 the Director of Public Prosecutions appealed against that order. On 10 May 2004 we dismissed the appeal, undertaking to give our reasons later. These are those reasons. 3 On 12 March 2004 the respondent appeared again before Judge Nicholson. In the light of evidence of his satisfactory progress at WHOS, and also being aware that the Director had lodged an appeal, his Honour adjourned the proceedings to 11 June 2004. However, it was his Honour's reasons of 10 December 2003 which were challenged in the appeal. 4 It is unnecessary to recite the facts of the offence in any detail. It is sufficient to say that in the early evening of 25 June 2003 the respondent went to the Subway restaurant in Mulgoa Road, Jamisontown, disguised by a balaclava and armed with a tomahawk. The restaurant was staffed at the time by two young women, aged seventeen and eighteen. The respondent displayed the tomahawk to the seventeen year old woman, demanded money, was given $600 from the cash register and left. There were patrons of the restaurant present at the time, including children. The incident caused great distress to the seventeen year old victim, who was terrified and who afterwards had difficulty sleeping, as well as attending to her study for the higher school certificate. 5 The offence was undoubtedly serious, a fact about which his Honour made no bones in his reasons for the adjournment. Moreover, the respondent was thirty five years old at the time of the offence and was by no means a first offender. He has a substantial criminal record, although he has no previous conviction as serious as the present offence. The entries comprise offences of violence and dishonesty, drug offences and driving offences. All were dealt with summarily but for many of them he was sentenced to terms of imprisonment. In this and in a number of other respects his Honour found that there were aggravating factors within the meaning of s21A(2) of the Crimes (Sentencing Procedure) Act. 6 The respondent was arrested on the same day as the offence, made full admissions to police in a recorded interview, and pleaded guilty from the outset. He committed the robbery to obtain money to buy heroin, and it is his long-standing drug addiction which led his Honour to take the course he did. 7 The respondent had been using heroin and amphetamines since his teenage years. As is so often the case, his conflict with the criminal law was against the background of this abuse. However, in the three years prior to the present offence he had tried to address the problem, spending periods of several months at WHOS in 2000 and again in 2001. He appears to have had a measure of success, moving into a Housing Department flat at Kingswood and avoiding the company of his former associates. However, he relapsed into drug use after a tragic accident in February 2003 when his flat mate fell to his death from the balcony of the flat. It was in these circumstances that the armed robbery was committed a few months later. 8 At the time he appeared before his Honour he had been in custody for over five months. He told a psychiatrist who provided a report to the court that he had not used illicit substances on a regular basis during that period, but that he still felt the urge to do so. While he was making a personal effort to remain abstinent, he was willing to undergo a further six month period of residential rehabilitation. 9 Judge Nicholson said of the respondent that the "principal threat to his rehabilitation is his drug abuse." Nevertheless, his Honour saw hopeful signs of rehabilitation in the history which I have outlined. In addition, he had resolved differences with members of his family and enjoyed their support, and had developed his skill as a guitarist and songwriter. His Honour recognised that the objective criminality of the offence and the need for deterrence called for "a substantial period of custody …" However, he added that "the question of what weight is to be given to his rehabilitation prospects is an important factor." 10 His Honour referred to the examination of s11 of the Crimes (Sentencing Procedure) Act by Smart AJ, with whom Spigelman CJ and Grove J agreed, in R v Trindall (2002) 133 ACrimR 119 at [41] ff. He concluded: "… it would be so much better for me to have evidence of what has actually taken place than to seek to sentence on some sense of false euphoria as to progress that has thus far been made. For that reason I have determined that it is appropriate to have regard to the two matters to which s11 allows me to have regard. I am entitled to adjourn proceedings for the purpose of assessing the offender's capacity and prospects of rehabilitation and I intend to do so. I am entitled to give him an opportunity to demonstrate that his rehabilitation is taking place." 11 His Honour's reference to "the two matters to which s11 allows me to have regard" was derived from the opening words of s11: "(1) A court that finds a person guilty of an offence (whether or not it proceeds to conviction) may make an order adjourning proceedings against the offender to a specified date, and granting bail to the offender in accordance with the Bail Act 1978: (a) for the purpose of assessing the offender's capacity and prospects for rehabilitation, or