R v Toma

Case [2018] NSWCCA 45 23 March 2018

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Toma [2018] NSWCCA 45
Hearing dates: 16 February 2018
Decision date: 23 March 2018
Before: Hoeben CJ at CL at [1];
White JA at [2];
N Adams J at [54]
Decision:
Appeal dismissed.

Catchwords: CRIME – Crown appeal against sentence - participating in acts of child prostitution - s 91D Crimes Act 1900 (NSW) – whether the sentencing judge erred in his assessment of the objective seriousness of the offending leading to the imposition of a sentence that was manifestly inadequate – whether the sentence was manifestly inadequate – residual discretion exercised not to resentence
Legislation Cited: Crimes (Child Prostitution) Amendment Act 1988 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) - ss 3A(b), 7
Crimes Act 1900 (NSW) - ss 91C, 91D(1)(b)
Criminal Appeal Act 1912 (NSW) - s 5D
Cases Cited: CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
Glover v The Queen [2016] NSWCCA 316
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
R v Darwich [2018] NSWCCA 46
R v Nelson [2016] NSWCCA 130
R v O’Connor [2014] NSWCCA 53
Category: Principal judgment
Parties: Regina (Crown)
Elia Toma (Respondent)
Representation:
Counsel:
S Dowling SC (Crown)
D Barrow (Respondent)
Solicitors:
C Hyland – Solicitor for Public Prosecutions (Crown)
M MacDonald – Nyman Gibson Miralis (Respondent)

File Number(s): 2012/165924
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

2 November 2017

Before:

Blackmore DCJ

File Number(s):

2012/165924

Judgment

HOEBEN CJ at CL: I agree with White JA and the order which he proposes.
WHITE JA: This is a Crown appeal against sentence brought under s 5D of the Criminal Appeal Act 1912 (NSW). On 20 June 2017 the offender, Mr Elia Toma, was found guilty of two offences under s 91D(1)(b) of the Crimes Act 1900 (NSW) that between 13 March and 14 November 2009 he participated as a client with a girl (called “BE”) under the age of 18 years, namely, 14 or 15 years, in an act of child prostitution. He pleaded not guilty. The maximum penalty for each offence was 10 years. There is no standard non-parole period applicable to the offences committed at that time.
On 2 November 2017 Mr Toma was sentenced by the primary judge (his Honour Judge Blackmore SC) to imprisonment for one year and eight months to be served by way of an intensive correction order (“ICO”) pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
By an amended notice of appeal filed on 22 January 2018, the Director of Public Prosecutions appeals on the grounds that:

the sentencing judge erred in his assessment of the objective seriousness of the offending leading to the imposition of a sentence that is manifestly inadequate; and

that the sentence pronounced was manifestly inadequate.

The primary judge made the following findings:

“The offender engaged on two occasions in sexual contact…

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 Toma

Details

AGLC: R v Toma [2018] NSWCCA 45
Case: [2018] NSWCCA 45
Decision Date: 23 March 2018

CaseChat Overview and Summary

The defendant, Toma, was convicted of participating in acts of child prostitution, in breach of section 91D of the Crimes Act 1900 (NSW). The Crown appealed the sentence imposed by the sentencing judge, arguing it was manifestly inadequate. The Court of Criminal Appeal was tasked with determining whether the sentencing judge erred in his assessment of the objective seriousness of the offending and whether the sentence imposed was manifestly inadequate. The Crown further sought a resentencing based on the objective seriousness of the offending.

The court considered the gravity of the offence, the impact on the victim, and the sentencing principles outlined in relevant legislation and case law. The court examined the sentencing judge's reasons and the objective seriousness of the offending. It assessed whether the sentence was manifestly inadequate and whether the exercise of residual discretion was appropriate. The court held that the sentencing judge erred in his assessment of the objective seriousness of the offending, leading to a sentence that was manifestly inadequate. However, the court decided not to resentence, exercising its residual discretion.

The Court of Criminal Appeal found that the sentence was manifestly inadequate due to the sentencing judge's error in assessing the objective seriousness of the offending. The court considered the impact on the victim and the need for general deterrence. Despite the error, the court exercised its residual discretion not to resentence, taking into account the totality of the circumstances and the original sentence. The appeal was dismissed, and the original sentence stood.

Orders