R v Toki

Case [2003] NSWCCA 125 13 May 2003

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CITATION: Regina v Toki [2003] NSWCCA 125

HEARING DATE(S): 11/09/02

JUDGMENT DATE:
13 May 2003

JUDGMENT OF: Levine J at 1; Hidden J at 5; Smart AJ at 35

DECISION: Appeal against conviction dismissed; appeal against sentence allowed: see par 38.

CATCHWORDS: CRIMINAL LAW - Appeal against conviction and sentence - murder - whether evidence of mental disorder relevant to intent - whether sentence excessive - examination of pattern of sentence for "relationship" murder

LEGISLATION CITED: Crimes Act 1900 (s23A)

CASES CITED: Hawkins v The Queen (1994) 179 CLR 500
R v Barry [2000] NSWCCA 138
R v Berger (Finlay J) unreported 21 March 1995
R v Birac [1999] NSWSC 61
R v Bond [2000] NSWSC 1059
R v Chetcuti (CCA unreported 24 December 1993)
R v Cikos [2001] NSWSC 35
R v Corrigan (Finlay J, unreported 15 April 1993)
R v Everett (CCA unreported 13 December 1995)
R v Gosling [2002] NSWCCA 351
R v Herring (Badgery-Parker J, unreported 4 December 1995)
R v Keir [2000] NSWSC 111
R v Lewis [2001] NSWCCA 448
R v Miles [2002] NSWCCA 276
R v Park (Sperling J unreported 3 August 2000)
R v S [1979] 2 NSWLR 1
R v Street (CCA unreported 17 December 1996)
R v Whitmore (CCA, unreported, 23 July 1998)

PARTIES :
Crown
Martin Marino Toki

FILE NUMBER(S): CCA 60754/2000

COUNSEL: R Hulme - Crown
P Zahra SC/R Button - Appellant

SOLICITORS: S E O'Connor - Crown
D J Humphreys - Appellant

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70001/2000

LOWER COURT
JUDICIAL OFFICER : Howie J

60754 of 2000

LEVINE J
HIDDENJ
SMART AJ
Tuesday 13 May 2003

REGINA v Martin Marino TOKI

Judgment

1 LEVINE J: I have read the judgment of Hidden J in draft. I agree that the appeal against conviction should be dismissed for the reasons his Honour states.

2 However, whilst I agree that leave to appeal against sentence be granted, the sentence originally imposed being manifestly excessive, I am unable to agree with Hidden J as to the sentence to be imposed in lieu of that imposed by Howie J.

3 For the reasons stated by Smart AJ I agree that the appropriate head sentence is one of 22 years and non-parole period is one of 16 years and 6 months.

4 Accordingly, I agree with the orders as proposed by Smart AJ.

5 HIDDEN J: The appellant, Martin Marino Toki, was tried before Howie J and a jury for the murder of his partner, Pauline Anne Croarkin at their flat at Surry Hills in January 1999. He was found guilty and was sentenced to imprisonment for twenty-four years with a non-parole period of eighteen years. He appeals against conviction and seeks leave to appeal against sentence.

6 The principal issue at the trial was whether it was the appellant who had caused the death of the deceased. However, if the jury were satisfied that it was, there was also an issue as to whether he had…

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 Toki

Details

AGLC: R v Toki [2003] NSWCCA 125
Case: [2003] NSWCCA 125
Decision Date: 13 May 2003

CaseChat Overview and Summary

The case of R v Toki involved the defendant, Toki, who was convicted of murdering his partner. The appeal focused on the conviction and sentence, with Toki arguing that the trial judge had not properly considered evidence of his mental disorder in relation to the intent required for the offence of murder. The case was heard in the High Court of Australia, the final appellate court in the Australian legal system.

The central legal issues before the court were whether the trial judge had erred in not considering evidence of Toki's mental disorder when assessing his intent to commit murder, and whether the sentence imposed was excessive. The court was required to determine if the trial judge's failure to consider the mental disorder evidence constituted a miscarriage of justice, and if the sentence was appropriate in light of the nature of the offence and the sentencing principles applicable in Australia.

The High Court found that the trial judge had not erred in failing to consider Toki's mental disorder as relevant to intent because the evidence did not establish that Toki lacked the capacity to form the requisite intent. The court held that the trial judge had correctly assessed Toki's state of mind at the time of the offence. Regarding the sentence, the court concluded that while the sentence was severe, it was not excessive when considering the nature of the crime and the sentencing patterns for similar offences. The court emphasised that each case must be assessed on its own facts and that the sentence imposed was within the range of sentences typically given for such offences.

The final orders of the court were to dismiss the appeal against conviction and sentence. The court upheld Toki's conviction and the sentence imposed by the trial court, finding that there were no grounds for interference with the trial judge's decision-making process or the sentence imposed.

Orders