R v O'Toole (No. 5) - [2021] NSWDC 64

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:
Ms J Smith (Crown)
Dr R Webb (Offender)
Solicitors:
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

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…

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.

Keep reading for free

Create a free CaseChat account to read R v O'Toole (No. 5) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWDC 64
Decision Date: 11 March 2021

CaseChat Overview and Summary

The case of R v O’Toole (No. 5) involved the defendant, O’Toole, who faced charges related to historical child sex offences. The dispute was primarily about the admissibility of evidence concerning the defendant's past sexual offences and whether this evidence was relevant and admissible under the rules of evidence. The matter was heard in the Supreme Court of Queensland.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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: Ms J Smith (Crown) Dr R Webb (Offender) Solicitors: 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.