van Gelder, Vivian --- "Factors in Sentencing Indigenous Women: R v Cynthia James Leonard" [1996] AboriginalLawB 73; (1996) 3(85) Aboriginal Law Bulletin 27

• Factors In Sentencing Indigenous Women: R V Cynthia James Leonard
• The Charge
• Count 2: S33b
• Count 3: S33
• Sentencing
• Conclusion

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Factors in Sentencing Indigenous Women:
R v Cynthia James Leonard

R v Cynthia James Leonard

Court of Criminal Appeal, New South Wales

Unreported

No. 60749/95

22 April 1996

Casenote by Vivian van Gelder

Cynthia James Leonard appealed to the Court of Criminal Appeal after being convicted of offences against ss33 and 33B of the Crimes Act 1900 (NSW) and sentenced effectively to seven years imprisonment (three years minimum term plus an additional term of four years). Her appeal against the convictions and the severity of the sentence were based on the grounds that they were unsafe and unsatisfactory. The judgment was delivered by Allen J, with whom Gleeson CJ and James J agreed.

The facts were these. Ms Leonard, an Aboriginal woman aged twenty four, is the mother of three young children by her de facto husband Peter Turnbull. She suffered violence at the hands of Mr Turnbull and had moved with her children to Dubbo to escape from him. Nevertheless, he discovered her whereabouts, and on the evening of 16 September 1993, 'heavily intoxicated', he confronted her as she and her children returned home. She was said also to be 'markedly affected by liquor'. A voluble argument ensued and the neighbours called the police. When Constables Stevenson and McKillop arrived, Mr Turnbull had vanished into the house. The constables entered the house with Ms Leonard, whereupon Mr Turnbull escaped and was arrested for trespass on a neighbouring property. The constables attempted to install him in the police van, but were obstructed by Ms Leonard who repeatedly asked why Mr Turnbull had been arrested. Constable McKillop physically moved her away from the scene, whereupon she began to struggle with him, throwing the contents of her bottle of beer over his head and attempting to punch him. Constable Stevenson came to Constable McKilIop's aid and arrested Ms Leonard for assault. In the meantime, Constable McKillop had walked a short distance away to take hold of Mr Turnbull, who had wandered off during the confusion. During this brief interval, Ms Leonard managed, while struggling with Constable Stevenson, to extract his service revolver from its holster and fire three shots in the direction of Constable McKillop and Mr Turnbull. One of these shots grazed the side of Constable McKillop's head.

The charge

As a result of these events, Ms Leonard was indicted before Moore DCJ in the Dubbo District Court on four counts. Counts 1 and 3 involved offences against s33 of the Crimes Act. Counts 2 and 4 involved offences against s33B of the same Act.

The relevant sections of the Act are as follows:

'33. Whosoever'maliciously by any means wounds or inflicts grievous bodily harm upon any person, or
'maliciously shoots at, or in any manner attempts to discharge any kind of loaded arms at any person,
'with intent in any such case to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detainer either of himself or any other person,
'shall be liable to penal servitude for 25 years.
'33B. Any person who:
'(a) uses, attempts to use, threatens to use or possesses an offensive weapon or instrument; or
'(b) threatens injury to any person or property,
'with intent to commit an indictable offence or with intent to prevent or hinder the lawful apprehension or detention either of himself or any other person or to prevent or hinder a member of the police force from investigating any act or circumstance which reasonably calls for investigation by the member shall be liable to penal servitude for 12 years'.

Ms Leonard was convicted of counts 2 and 3; that is, of an offence under s33B and an offence under s33. The conviction under s33B reflected the jury's belief that she had used a weapon with the intent to prevent her own or Mr Turnbull's arrest. The offence under s33 is obviously the more serious offence. Her conviction under this section indicated that the jury was convinced beyond reasonable doubt that Cynthia James Leonard had fired a shot intending to hit Constable McKillop, in order to prevent either her own or Mr Turnbull's arrest.

Ms Leonard's argument at the appeal stage was divided into three parts: 1. count 2; 2. count 3; and 3. sentence.

Count 2: s33B

The mens rea required for a conviction under s33B is that accused persons intended to prevent their own or another person's arrest or detention. Ms Leonard argued that she had not possessed the requisite mens rea, arguing that (i) the firing of the shots had been 'a panic reaction not directed to accomplishing anything'; and (ii) that she had not intended to prevent the 'lawful apprehension' of Mr Turnbull, but had rather feared being placed in the back of the police van with him. In support of the latter contention it was pointed out that when Constable Stevenson, whose revolver was used to fire the shots, took over from Constable McKillop in restraining Ms Leonard, he immediately charged her with assault, introducing the possibility of her being placed in the van with Mr Turnbull.

Allen J found both of these, contentions 'far-fetched' (p7). He described Ms Leonard's appropriation of Constable Stevenson's gun as 'a deliberate and skilful procurement' (p8) requiring 'considerable dexterity and control' (p7). He thus rejected her first contention, that she had no intention to use the weapon to resist either her own or Mr Turnbull's arrest. Further, Allen J found her second contention, based on her fear of being placed in the van with Turnbull, to be lacking in logic. First, he said, her resistance to Mr Turnbull's arrest began prior to her own arrest (at which stage the danger of their placement together arose) when she obstructed the constables in their attempt to install Turnbull in the van (p8). Second, when she fired the revolver, it was not aimed at Constable Stevenson, who was detaining her, but at Constable McKillop, who was detaining Mr Turnbull (p9). Finally, it made sense to the judge that if she had had such a fear, her firing of the weapon was more properly described as an attempt to allow Mr Turnbull to escape detention, thus freeing her from the prospect of him joining her in the van (p9). He therefore found that her actions were consistent with an intent to prevent Turnbull's arrest, and that the jury had acted reasonably in convicting her of count 2, the offence under s33B.

Count 3: s33

Allen J pointed out that to sustain a conviction under s33, the jury needed to be satisfied beyond reasonable doubt that Ms Leonard in fact intended the second shot to hit Constable McKillop. 'Unless she had that intention, she did not shoot at him within the meaning of the offence charged ... and was guilty only of the lesser offence under s33B' (p10). He found that the evidence offered to support this conviction was unconvincing. First, he pointed to the fact that Ms Leonard's children were standing somewhere near Constable McKillop at the time the shot was fired, and a shot intended to hit the constable would put them (and Mr Turnbull) in danger as well. Second, he noted that 'the shot was fired in circumstances in which it would have been extremely difficult to aim with any accuracy' (p10). Ms Leonard was apparently in a 'semi-recumbent' position at the time as Constable Stevenson was dragging her toward the police van, holding her beneath the armpits (p11). Allen J rejected a contention by the Crown that the shot must have been intended to hit the constable because it did in fact hit him. He found that the second shot was so close in time to the first that it must have been fired with the same intent (p12); the second shot, like the first, was fired in order to prevent Mr Turnbull's arrest, but not with intent to hit Constable McKillop. Thus, Allen J held that the jury had acted unreasonably in convicting Ms Leonard of the offence under s33. He quashed the conviction under s33 and substituted a conviction of the lesser offence under s33B, pursuant to s7(2) of the Criminal Appeal Act 1912 (NSW).

Sentencing

The substitution of convictions meant that it was necessary to re-sentence Ms Leonard. Allen J allowed the appeal against the original sentence. In reconsidering the sentence he weighed several competing considerations. Elaborating this task, he said

‘... The fundamental purpose of sentencing is the protection of the community ... An appropriate sentence must be passed notwithstanding favourable personal circumstances for the appellant. That does not mean that favourable personal circumstances will not be taken into account and will not be sympathetically understood. But they do not give any licence to commit crime' (p15).

First, citing R v Hamilton ((1993) 66 ACrimR 575) he emphasised the gravity of an offence against s33B; such offences 'are regarded by the Court extremely seriously' (p14). He asserted that 'the sentences to be passed must reflect the gravity' of this offence. He was unsympathetic to the contention that the influence of alcohol, the presence of emotional turmoil or 'loyalty to one's ethnic group' could weigh in the appellant's favour 'There is no section of the community with a licence to behave in that way' (p14). He emphasised the necessity of ensuring that the police are not physically threatened in the pursuit of their duties (p14).

Allen J then quoted at length a passage by the sentencing judge which detailed Ms Leonard's difficult life. The sentencing judge pointed out that 'she is a person of good character, she is caring and honest, she is a devoted mother and her prime concern is the well-being of her children' (p17). Citing her progress towards rehabilitation and the undesirable fact that any custodial sentence carried the result of a separation from her children, Allen J reduced her sentence from the original effective sentence of seven years, to an effective sentence of two years.

Conclusion

While the ultimate result of Ms Leonard's appeal was an improvement on the original conviction and sentence, it perhaps should respectfully be asked whether the learned judge's discussion of the circumstances surrounding the incident was not somewhat incomplete. While he showed some measure of understanding of the forces at work in such a difficult situation, he appears to have ignored two important factors: the appellant's history as a victim of domestic violence, and the history of Indigenous and police relations. In rejecting as 'illogical' Ms Leonard's contention that she was attempting to prevent her own arrest, by pointing out her obstructive behaviour towards the officers prior thereto, Allen J ignored the probable danger to the appellant in her former de facto's likely perception that his arrest was her doing. Finally, the appeal judge's rather startling comments dismissing 'racial loyalty' as an alleviating factor in sentencing show a failure to recognise that Indigenous-police relations do in fact involve quite different considerations to the relations between police and non-Indigenous members of our community.