O'Toole v The Queen - [2013] VSCA 62

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0162

CHRISTOPHER ALAN O’TOOLE
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WARREN CJ, REDLICH AND COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 February 2013
DATE OF JUDGMENT:	27 March 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 62
JUDGMENT APPEALED FROM	DPP v O’Toole (Unreported, County Court of Victoria, 21 June 2012, Judge Hampel)

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CRIMINAL LAW – Appeal against sentence – Appellant convicted of aggravated burglary, intentionally causing injury and common assault – Whether sentencing judge erred by failing to find a causal connection between appellant’s post-traumatic stress disorder and the offending – Whether sentencing judge incorrectly found that a causal connection between appellant’s post-traumatic stress disorder and the offending was required in order to mitigate sentence – Whether sentencing judge erred in finding risk of relapse in prison of post-traumatic stress disorder symptoms insufficient to mitigate sentence – Appeal dismissed – R v Verdins (2007) 16 VR 269 considered.

CRIMINAL LAW – Appeal against sentence – Appellant convicted of aggravated burglary, intentionally cause injury and common assault – Whether sentencing judge failed to adequately consider the availability of a Community Correction Order – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Doyle	Nelson Partners
For the Respondent	Mr T Gyorffy, SC	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

The appellant, Christopher O’Toole, pleaded guilty to one count of aggravated burglary, one count of intentionally causing injury and one count of common assault. Following a plea he was sentenced as follows:

Charge on indictment Offence Maximum Sentence Cumulation

1 Aggravated burglary [Crimes Act 1958, s 77] 25 years 2 years BASE

2 Intentionally cause injury [Crimes Act 1958, s 18] 10 years 12 months 3 months

Related Summary Charge Common assault [Summary Offences Act 1966, s 23] 3 months 3 months 1 month

Total Effective Sentence: 2 years and 4 months’ imprisonment

Non-parole Period: Nil – 12 months to serve, with 16 months suspended for 16 months

The appellant seeks to appeal his sentence. He was granted leave to appeal on the following grounds:

1. The learned sentencing judge erred in failing to apply any of the principles concerning impaired mental functioning outlined in the case of R v Verdins (2007) 16 VR 269.[1]

2. The sentencing discretion miscarried by reason of the learned sentencing judge’s failure to consider adequately the availability of a Community Correction Order.

[1]‘Verdins’.

Circumstances of the offending

The offending arose from a road rage incident on the afternoon of 1 November 2010. The appellant was seated in the passenger seat of his car supervising his son, who was driving as a learner driver. The appellant’s wife was in the back seat.

The first victim, who was 17 years old at the time, inadvertently veered into the path of the appellant’s car while negotiating a roundabout. The appellant became angry and directed his son to follow the other car. While…

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: O'Toole v The Queen [2013] VSCA 62
Case: [2013] VSCA 62
Decision Date: 27 March 2013

CaseChat Overview and Summary

The appellant, O’Toole, appealed against his conviction and sentence for aggravated burglary, intentionally causing injury, and common assault. The appeal was heard by the court, which was tasked with determining whether the sentencing judge had erred in their decision-making process. The central issue before the court was whether the sentencing judge failed to appropriately consider the appellant’s post-traumatic stress disorder (PTSD) as a mitigating factor in the sentencing process. Specifically, the court had to determine if the sentencing judge erred by not finding a causal connection between the appellant's PTSD and the offending, and whether the sentencing judge incorrectly believed that such a connection was necessary to mitigate the sentence. Additionally, the court examined whether the sentencing judge erred in finding that the risk of a relapse of PTSD symptoms in prison was insufficient to mitigate the sentence.

In considering these issues, the court closely examined the sentencing judge’s reasoning and the evidence presented. The court found that the sentencing judge did not err in concluding that there was no causal connection between the appellant’s PTSD and the offending. The court held that the sentencing judge’s decision was consistent with the principles set out in R v Verdins, which emphasises that a causal connection between PTSD and offending behaviour is not a prerequisite for considering PTSD as a mitigating factor. Furthermore, the court found that the sentencing judge appropriately assessed the risk of relapse of PTSD symptoms in prison, concluding that it did not warrant a reduced sentence. The court also dismissed the appellant's argument regarding the failure to adequately consider a Community Correction Order, finding that the sentencing judge had given due consideration to all sentencing options available.

Ultimately, the appeal was dismissed. The court upheld the original sentence, finding that the sentencing judge had exercised their discretion appropriately in all respects. The court did not identify any errors in the sentencing process that warranted an alteration to the sentence imposed.

Orders