R v O'Toole

The appeal concerned a sentence imposed by a sentencing Judge on the appellant, who had pleaded guilty to several offences arising from a police raid on his warehouse. The dispute centred on the Judge's decision to impose a single sentence of imprisonment for all offences, including two that were punishable by fine only, purportedly under section 18A of the *Criminal Law (Sentencing) Act 1988*. The Court of Criminal Appeal was asked to determine whether this sentencing approach was lawful and whether the appellant should be resentenced.

The primary legal issue before the Court of Criminal Appeal was whether the sentencing Judge had erred in imposing a single sentence of imprisonment for a group of offences that included offences punishable by fine only. This raised the question of the court's power to impose such a sentence. A secondary issue was whether the appellant should be resentenced by the Court of Criminal Appeal, and if so, what form that sentence should take, including considerations of suspension and conviction and discharge for certain offences.

The majority of the Court of Criminal Appeal, comprising Sulan and Vanstone JJ with Peek J concurring, held that the sentencing Judge had erred in imposing a single sentence of imprisonment under section 18A of the *Criminal Law (Sentencing) Act 1988* for offences that included two punishable by fine only. The court found that it was beyond the sentencing Judge's power to do so. Consequently, the appeal was allowed, and the appellant was to be resentenced by the Court of Criminal Appeal.

In resentencing, Peek J and Sulan J determined that the appellant should receive a single term of imprisonment of two years with a non-parole period of eight months, adjusted for time already spent in custody. They found good reason to suspend the sentence, considering the appellant's mental condition, the fact that his offending was not part of a criminal enterprise, and his lack of prior convictions for violent or firearms offences. For the offences punishable only by a fine, the appellant was convicted and discharged without further penalty. Vanstone J dissented, believing the firearms offences were very serious, the appellant's psychological problems exacerbated the seriousness, and there was no good reason to suspend the sentence, proposing a two-year term with an eight-month non-parole period commencing from the original sentencing date.