R v LEACH [2007] NSWSC 429

New South Wales Supreme Court

CITATION : R v LEACH [2007] NSWSC 429

HEARING DATE(S) : 11.4.07-19.04.07 27.4.07

JUDGMENT DATE : 27 April 2007

JUDGMENT OF : Hulme J at 1

DECISION : I sentence you to imprisonment for a non-parole period of 4 years and 6 months commencing on 15 July 2005 with a balance of term of 3 years. I record as the date upon which it appears that you will become eligible for parole is 15 January 2010

PARTIES : Regina Benjamin Anthony Leach

FILE NUMBER(S) : SC 2006/2108

COUNSEL : Crown: Mr W Creasey Prisoner: Mr T Golding

SOLICITORS : Crown: DPP of NSW Prisoner: Legal Aid Commission of NSW

- 15 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HULME J 27 April 2007

2006/2108

REGINA v Benjamin Anthony LEACH

REMARKS ON SENTENCE 1 HULME J: The Prisoner stands for sentence for the manslaughter, by an unlawful and dangerous act, of his 7 week old daughter, Ikicia. He had been arraigned on a charge of murder but after a voir dire enquiry in the course of which the Crown abandoned reliance on two evidentiary aspects of its case and I ruled as inadmissible a third, the Crown elected to accept the plea in full satisfaction of the indictment. The maximum penalty prescribed for manslaughter is, by reason of s24 of the Crimes Act, 25 years imprisonment 2 Many of the acts relevant to sentencing are common ground, but some are not and require decisions by me. I acknowledge that insofar as matters going to the Prisoner's criminality are to be used adversely to him, I must be satisfied of them beyond reasonable doubt. Insofar as matters go to mitigation, I need only be satisfied of them on the balance of probabilities. 3 The deceased was born on 21 May 2005. She died on 13 July 2005. In the early hours of that morning, the deceased woke and began to cry. By arrangement the parents took it in turns to attend to the child on these occasions and the Prisoner got out of bed and took the deceased to the lounge room, placing her on the lounge. I am not able to find whether it was the Prisoner's turn or whether he rose out of a desire to spare the child's mother. He bottle fed the child and took steps to bring up wind. However, the deceased did not settle and continued to cry. Efforts by the Prisoner to induce the child to take a dummy were also unsuccessful. 4 The Prisoner sat on the child. The crying stopped, the evidence suggesting that the child stopped breathing at that time. The Prisoner rushed into the shared bedroom and woke Ikicia's mother informing her of the stoppage of breathing. He dialled 000 and the ambulance arrived some time later. Until the ambulance arrived and in an attempt to revive the deceased, her mother to some extent but the Prisoner mainly, undertook CPR in accordance with instructions received from the 000 operator and knowledge the Prisoner had acquired as a child. When the ambulance officers arrived, they observed the Prisoner performing CPR in an acceptable fashion.