CATCHWORDS: CRIMINAL LAW AND PROCEDURE SENTENCE IMPORTATION OF COMMERCIAL QUANTITY OF NARCOTICS (MDMA) COURIER ACTING FOR FINANCIAL GAIN OFFENDER BECOMING PREGNANT AFTER ARREST AND CHARGE APPEARING FOR SENTENCE AT A TIME WHEN NEWBORN APPARENTLY BEING BREASTFED INSUFFICIENCY OF EVIDENCE OF POTENTIAL CONTACT BETWEEN MOTHER AND CHILD IF MOTHER IN CUSTODY THREE YEARS IMPRISONMENT WHOLLY SUSPENDED CROWN APPEAL MANIFEST INADEQUACY APPROPRIATE COURSE TO REMAND AND RECEIVE EVIDENCE ENABLING ASSESSMENT THAT CIRCUMSTANCES OF CUSTODY WILL BE HUMANE IN RESPECT OF CONTACT BETWEEN MOTHER AND CHILD EXCEPTIONAL CIRCUMSTANCES REQUIRED TO GIVE SUBSTANTIAL WEIGHT PROBABLE EFFECT OF SENTENCE ON FAMILY OR DEPENDANTS PURSUANT TO s16A(2)(p) CRIMES ACT 1914 APPLICABLE LIMITATIONS ON AVAILABILITY OF PERIODIC DETENTION AND HOME DETENTION NOT REMOVED FOR FEDERAL OFFENCES BY s20AB(1A) CRIMES ACT 1914 RELEVANCE OF INTERNATIONAL CONVENTIONS OBSERVATIONS CONCERNING CONVENTION ON THE RIGHTS OF THE CHILD;INNOCENTI DECLARATION ON THE PROTECTION, PROMOTION AND SUPPORT OF BREASTFEEDING AND CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN FINDINGS BY SENTENCING JUDGE (PER SPIGELMAN CJ & GROVE J, EINFELD AJ CONTRA) DESIRABILITY OF RESENTENCE BY DIFFERENT JUDGE ON REMITTER TO TRIAL COURT
DECISION: APPEAL ALLOWED REMITTED TO DISTRICT COURT FOR RESENTENCE
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
60242/01
SPIGELMAN CJ GROVE J EINFELD AJ
Friday 14 December 2001
REGINA v NIKOLITSA TOGIAS
JUDGMENT
SPIGELMAN CJ: The facts and issues are set out in the judgment of Grove J which I have read in draft. The Respondent to this Crown appeal acted as a courier for a substantial quantity of the narcotic known as ecstasy. The amount of almost one kilogram was double the commercial quantity. The Respondent pleaded guilty to a charge of importation pursuant to s233B(1)(b) of the Customs Act 1901 (Cth) and was convicted and sentenced accordingly.
Whether Sentence Manifestly Inadequate
In the present case a substantial custodial sentence was called for, unless the case was exceptional. There was a plea of guilty and the subjective circumstances advanced on the part of the Respondent were of moderate strength. The consideration of particular force was the fact that at the time of sentence the Respondent had recently given birth to a child.
I agree with Grove J that the sentence of three years was a manifestly inadequate sentence. The Crown presented to the Court a detailed schedule of sentences for ecstasy and other mid-range narcotics. The Respondent did not…
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.
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AGLC
R v Togias [2001] NSWCCA 522
Case
[2001] NSWCCA 522
Decision Date
CaseChat Overview and Summary
The case of R v Togias, which was heard in the High Court of Australia, involves the sentencing of the appellant who was convicted of importing a commercial quantity of MDMA. The central issue before the court was whether the original sentence of three years imprisonment, wholly suspended, was manifestly inadequate given the appellant's status as a pregnant woman who would need to care for her newborn child. The appellant had been arrested and charged while pregnant and appeared for sentencing with her apparently breastfeeding newborn. The High Court was tasked with determining whether the sentencing judge had sufficiently considered the potential impact of the sentence on the appellant's ability to care for her child.
The court examined whether the evidence was sufficient to establish that the appellant would have the opportunity to maintain contact with her child if she were to be imprisoned. The court noted that the sentencing judge did not have before them evidence that would enable an assessment of the circumstances of custody to ensure that contact between the appellant and her child would be humane. The court also considered the applicability of section 16A(2)(p) of the Crimes Act 1914, which permits consideration of the probable effect of the sentence on family or dependants. The High Court held that the sentence was manifestly inadequate due to the lack of evidence regarding the conditions of custody and its impact on the appellant's ability to care for her child.
In light of the above, the High Court allowed the Crown's appeal and remitted the matter to the trial court for resentencing by a different judge. The court observed that the sentencing judge should have the benefit of evidence that would enable an assessment of the humane conditions of custody in relation to contact between the appellant and her child. The court also noted that the provisions of the Crimes Act 1914 regarding periodic detention and home detention remained available for federal offences, and that international conventions such as the Convention on the Rights of the Child and the Innocenti Declaration on the Protection, Promotion and Support of Breastfeeding were relevant to the case. Ultimately, the court found that the desirability of resentencing by a different judge on remittal to the trial court was paramount.