R v Toko

[2022] NSWDC 39

District Court

New South Wales

Medium Neutral Citation:

R v Toko [2022] NSWDC 39

Hearing dates:

25 February 2022

Date of orders:

25 February 2022

Decision date:

25 February 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 75 - 77

Catchwords:

Sentencing – offence of recklessly causing grevious bodily harm – single punch to victim’s head by intoxicated offender – offender considered himself as rival to victim for a young woman’s affections – punch thrown at a party at mutual friend’s home

Legislation Cited:

Crimes Act 1900 (NSW) s 35

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 33, 21A

Cases Cited:

Bugmy v R (2013) 302 ALR 192

McCulloughvR (2009) 194 A Crim R 439

Muldrock v The Queen (2011) 244 CLR 120

Pattalis v R [2013] NSWCCA 171

R v Bird-Walton (A pseudonym)(no 2) [2021] NSWDC 23

R v Channells (unreported, 20/9/97, NSWCCA

Rv Fernando (1992) 76 A Crim R 58

R v Loveridge [2014] NSWCCA at [103]

R v Rosamond [2019] NSWDC 827

Stevens v R [2017] NSWCCA 216

Texts Cited:

Nil

Category:

Sentence

Parties:

Office of the Director of Public Prosecutions NSW
Mr R Toko (Offender)

Representation:

Solicitors:
Mr T Dwyer for the prosecution
Mr D Gibbons for the offender

File Number(s):

2021/00104323

Publication restriction:

Nil

EX TEMPORE Sentencing REMARKS

Background

1. Mr Rory Toko (the offender) is before the Court for sentencing, following a plea of guilty, for the offence of recklessly causing grievous bodily harm, contrary to 35(2) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 10 years’ imprisonment and a standard non-parole period of 4 years.

2. The conduct giving rise to the offending was a single punch to the head of Mr Cooper Elkington, the victim, at a party at Blue Haven on 13 March 2021.

The circumstances of the offending

3. The offender and the Crown agreed to an extensive list of facts. They may be summarised in the following terms.

Context

4. The offender and the victim did not know each other prior to the offending. They were mutual friends of Ms Kirsten Foster; although the victim had established a personal connection with her over a couple of years; whereas the offender primarily was a ‘social media’ friend with Ms Foster. At the hearing of this sentencing proceeding, the offender suggested that he had more than a ‘social media’ friendship with Ms Foster, but disclaimed any sexual relationship. It is agreed that Ms Foster was romantically interested in the victim. All three of these people were young at the time: the offender was 18; the victim 19 and Ms Foster was 18.

5. Just over a week before the offending, Ms Foster and the victim attended Wyong Leagues Club. Ms Foster became upset and jealous about the victim and left the club without him. Soon she exchanged messages with the offender, complaining that boys “confuse(d)” her. The offender inquired who she was referring to and Ms Foster identified the victim.

6. On the day before the…