R v Togias - [2002] NSWCCA 363

Reported Decision:
(2002) 132 A Crim R 573

New South Wales

Court of Criminal Appeal

CITATION: Regina v. TOGIAS [2002] NSWCCA 363 revised - 6/09/2002

FILE NUMBER(S): CCA 60375/02

HEARING DATE(S): 21 August 2002

JUDGMENT DATE:
30 August 2002

PARTIES :

Regina - appellant
Nicolitsa Togias - respondent

JUDGMENT OF: Hodgson JA at 1; Simpson J at 33; Smart AJ at 34

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : DC00/11/0195

LOWER COURT JUDICIAL
OFFICER : Solomon DCJ

COUNSEL : Mr. D.J. Bugg QC with Mr. G.T. Bellow for appellant
Mr. S. Odgers SC with Mr. I. McClintock for respondent

SOLICITORS: Commonwealth DPP for appellant
Murphy's Lawyers, Sydney for respondent

CATCHWORDS: CRIMINAL LAW - Sentence - Crown appeal - Offender becoming pregnant after arrest and charge - Three-year suspended sentence overturned by Court of Appeal as mainfestly inadequate - On resentencing by District Court, five-year suspended sentence imposed - Evidence from prison authorities that no decision on whether the offender could have her child with her in prison could be made until the offender had served at least four weeks - Evidence that separation of more than one week likely to cause significant long-term psychological damage to the child - Probability of hardship to offender's family - Whether exceptional circumstances - Effect of double jeopardy - CRIMINAL LAW - Sentence - Commonwealth offence - Whether Court can consider directly whether three-years periodic detention is preferable sentencing option.

LEGISLATION CITED: Crimes Act 1914 (Cth) ss.16A, 20AB

CASES CITED:
R v. Capper [2000] NSWCCA 63
R v. Carmody (1998) 100 ACrimR 41
R v. Edwards (1996) 90 ACrimR 510
R v. Lux NSWCCA 26/8/88
R v. Niga NSWCCA 13/4/94
R v. SLR (2000) 116 ACrimR 150
R v. Togias [2001] NSWCCA 522
R v. White [1999] NSWCCA 60

DECISION: Appeal dismissed.

- 12 -IN THE COURT OF

CCA 60375/02
DC 00/11/0195

HODGSON JA
SIMPSON J
SMART AJ
Friday 30 August 2002

REGINA v. Nicolitsa TOGIAS

Judgment

1 HODGSON JA: On 7 October 1999, the respondent was charged with an offence under s.233B of the Customs Act 1901 (Cwth), namely that she:

On 7 October 1999, at Sydney, New South Wales did import into Australia prohibited imports to which Section 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a quantity of 3,4-methylenedioxymethamphetamine, being not less than the commercial quantity applicable to 3,4-methylenedioxymethamphetamine.

2 On that day, she had arrived at Sydney Airport on a flight from Bali, carrying 8,282 tablets of the substance MDMA, commonly known as Ecstasy, amounting to almost double the commercial quantity of MDMA and having a street value estimated to be about $400,000.00.

3 On 22 March 2000, the respondent entered a plea of guilty before Downing Centre Local Court, and was committed to the District Court of New South Wales for sentence.

4 The respondent first appeared for sentence on 4 September 2000 before Woods DCJ, when his Honour was informed that the respondent was five and a half…

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 R v Togias

Details

AGLC: Regina v Togias [2002] NSWCCA 363
Case: [2002] NSWCCA 363
Decision Date: 30 August 2002

CaseChat Overview and Summary

The case of R v Togias involved an appeal by the Crown against a three-year suspended sentence imposed on the defendant, Togias, who had been found guilty of a Commonwealth offence. The Court of Appeal found the sentence to be manifestly inadequate and remitted the matter to the District Court for resentencing. Togias became pregnant after her arrest and charge, which introduced significant factors into the sentencing process, including the potential psychological impact on the child and the hardship to Togias's family.

The legal issues before the court included whether the Court could consider directly whether three years of periodic detention was a preferable sentencing option and whether the Court could take into account the evidence regarding the potential separation of Togias from her unborn child and its psychological impact. Additionally, the court needed to determine whether exceptional circumstances existed to warrant a reconsideration of the sentence and how the principle of double jeopardy would apply to the resentencing process.

The court concluded that the original sentence was manifestly inadequate and that the District Court, on resentencing, could consider the potential psychological damage to the child and the hardship to Togias's family. Evidence from prison authorities indicated that a decision on whether Togias could have her child with her in prison could not be made until she had served at least four weeks, and separation of more than one week was likely to cause significant long-term psychological damage to the child. The court also considered the effect of double jeopardy, noting that the Crown could appeal the resentencing if it was found to be manifestly inadequate. The District Court imposed a five-year suspended sentence, taking into account all relevant factors.

The final orders of the court were that the original sentence was quashed, and the matter was remitted to the District Court for resentencing. The District Court imposed a five-year suspended sentence, which was deemed appropriate after considering all relevant circumstances, including the potential psychological impact on Togias's unborn child and the hardship to her family.

Orders