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O'Toole v The Queen

O'Toole v The Queen

Case [2019] VSCA 185 19 August 2019

Appeal

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0171

JAMIE NATHAN O’TOOLE	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST JA and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 August 2019
DATE OF JUDGMENT:	19 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 185
SENTENCE APPEALED FROM:	[2018] VCC 1158 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, intentionally causing serious injury and other offences – Sentence 13 years’ imprisonment with 8 years and 6 months non-parole – Whether insufficient weight given to undertaking to give evidence against co-offender – Whether sentence manifestly excessive – Appeal allowed – Appellant resentenced to 11 years’ imprisonment with 7 years and 6 months non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann QC with Mr N Goodfellow	Stary Norton Halphen
For the Respondent	Mr J C J McWilliams	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
KIDD AJA:

Bearii is a small town in northern Victoria. In April 2017, Neville Limbrick, then aged 73 years,[1] lived there in a house.
[1]His date of birth is 7 January 1944.

Jamie O’Toole, the appellant, aged 44 years,[2] met Mr Limbrick in February 2015, through a mutual friend. In late September of that year, they had a falling out over a white Holden utility — allegedly stolen by the appellant — which resulted in Mr Limbrick making a complaint to police. As a result, the appellant was arrested on 15 January 2016 (albeit criminal charges laid against him were later dismissed).
[2]His date of birth is 9 February 1973.

At about 2.30 am on Thursday 27 April 2017, Mr Limbrick was asleep in his bedroom of the house, and tenant, Barry Walden, was asleep on a couch in the lounge room, when the appellant and James Bowling (‘Bowling’) parked a stolen Ford Maverick wagon in the driveway. The appellant and Bowling were soon to embark upon a series of offences which ultimately resulted in the appellant being sentenced to 13 years’ imprisonment, with a non-parole period of eight and a half years.[3]
[3]See [19] below.

Having parked the motor vehicle, the appellant and Bowling — armed with bars or baseball bats — entered the house through an unlocked door (charge 1 — aggravated burglary).

Mr Walden awoke to find a balaclava clad Bowling swinging a baseball bat at him. He was struck a number of times to the shoulders and hips.

Having entered Mr Limbrick’s bedroom, the appellant tied his hands with gaffer tape. The appellant then dragged Mr Limbrick over the concrete to the other end of the house. Mr Walden could hear Mr Limbrick being dragged to the kitchen, and Bowling said to him, ‘You’re not meant to be here … that’s the cunt over there we’re after’.

Mr Walden then saw the appellant slapping Mr Limbrick across the head, saying, ‘where’s the fucken money hidden’. Mr Limbrick screamed each time he was struck. The appellant then dragged Mr Limbrick and propped him…

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 O'Toole v The Queen

Details

AGLC: Jamie Nathan O'Toole v The Queen [2019] VSCA 185
Case: [2019] VSCA 185
Decision Date: 19 August 2019

CaseChat Overview and Summary

In the matter of O'Toole v The Queen, the High Court of Australia was called upon to review the sentence imposed upon the appellant for a series of serious criminal offences. The appellant, O'Toole, had been convicted of aggravated burglary, intentionally causing serious injury, and other related offences. Following his conviction, O'Toole was sentenced to 13 years in prison with an 8-year and 6-month non-parole period. O'Toole appealed against his sentence, arguing that the sentencing judge had not given sufficient weight to his promise to give evidence against his co-offender, and that the sentence was manifestly excessive.

The primary legal issues before the court were whether the trial judge had erred in failing to sufficiently consider the appellant's undertaking to provide evidence against his co-offender and whether the sentence was manifestly excessive. The appellant's counsel argued that the promise to testify was a significant mitigating factor that warranted a reduced sentence. They further contended that the sentence imposed was disproportionately harsh in light of the mitigating factors considered.

The High Court found that the trial judge had indeed failed to sufficiently weigh the appellant's promise to give evidence against his co-offender as a mitigating factor. The court noted that this was an important consideration that should have been given more substantial weight. Furthermore, the court found that the overall sentence was excessive, taking into account all the mitigating factors that should have been considered. As a result, the appeal was allowed, and the appellant was resentenced to 11 years' imprisonment with a non-parole period of 7 years and 6 months. This resentencing reflected a more balanced consideration of the mitigating factors presented.

Orders