District Court
New South Wales
Medium Neutral Citation: R v O’Toole (No. 5) [2021] NSWDC 64 Hearing dates: 11 December 2020 Decision date: 11 March 2021 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentence. For orders see [147]
Catchwords: Historical child sex offending; tendency evidence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Code 1899 (Qld)
Cases Cited: Aryal v R [2021] NSWCCA 2
Burr v R [2020] NSWCCA 282
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Cowling v R [2015] NSWCCA 213
Hornhardt v R [2017] NSWCCA 186
Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46
Magnussen v R [2013] NSWCCA 50
R v Blanco [1999] NSWCCA 121
R v Cattell [2019] NSWCCA 297
R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
R v SAG (2004) 147 A Crim R 301
Suleman v R [2009] NSWCCA 70
R v Todd (1982) 2 NSWLR 517
Wilson V R [2017] NSWCCA 41
Category: Sentence Parties: Director of Public Prosecutions (Crown)
Ian Wayne O’Toole (Offender)Representation: Counsel:
Solicitors:
Ms J Smith (Crown)
Dr R Webb (Offender)
R Endacott (Crown)
R Storie (Offender)
File Number(s): 17/229023 Publication restriction: Pursuant to s 8 of the Court Suppression and Non‑Publication Orders Act 2010, non-publication of all complainants’ names or information tending to reveal their identity, including the place of any alleged offence, until further order.
REMARKS ON SENTENCE
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On 17 July 2020, following a judge alone trial that took place between 16 June 2020 and 9 July 2020, the offender was found guilty of the following offences:
Count 1 – assault female and commit act of indecency on CW, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900.
The maximum penalty for the offence was 5 years imprisonment.
Count 2 – assault female and commit act of indecency on CW, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900.
The maximum penalty for the offence was 5 years imprisonment.
Count 3 - assault female and commit act of indecency on CW, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900.
The maximum penalty for the offence was 5 years imprisonment.
Count 4 – carnal knowledge of CW, a girl then under the age of 10 years, pursuant to s 67 of the Crimes Act 1900.
The maximum penalty for the offence was life imprisonment.
Count 5 - assault female and commit act of indecency on CW, a female then under the age of 16 years, pursuant to s 76 of the Crimes Act 1900.
The maximum penalty for the offence was 5 years imprisonment.
Count 6 – maintain an unlawful sexual relationship with KW, a child under the age of 16 years, pursuant to s 66EA(1) of the Crimes Act 1900.
The…
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- Case
- [2021] NSWDC 64
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the evidence of the defendant's past sexual offences was admissible to prove a tendency towards such offences, and if so, whether the probative value of this evidence outweighed any prejudicial effect it may have had on the jury. The court also had to consider the weight to be given to the evidence and whether it was necessary for the jury to be satisfied of the defendant's guilt beyond reasonable doubt.
The court found that the evidence of the defendant's past sexual offences was relevant and admissible to prove a tendency towards such offences. The court reasoned that the similarities between the past and present offences, including the nature of the acts and the circumstances, were sufficient to establish a pattern of behaviour. The court further found that the probative value of the evidence outweighed any prejudicial effect it might have had on the jury. The court directed the jury to consider this evidence in determining the defendant's guilt, but emphasised that it was not to be used as the sole basis for a conviction. Ultimately, the jury found the defendant guilty on all counts, and the court imposed a full-time custodial sentence. The specific orders of the court can be found at paragraph 147 of the decision.
Orders
Orders of the court
Full-time custodial sentence. For orders see [147]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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