R v Toms - [2006] VSCA 101

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 243 of 2005

THE QUEEN
	v.
PAUL ANTHONY TOMS

---

JUDGES:	BUCHANAN, VINCENT and NEAVE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 April 2006
DATE OF JUDGMENT:	5 May 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 101

---

Criminal law – Sentencing – Recklessly engaging in conduct which placed another in danger of death – Injecting deceased with methylamphetamine – Sentencing judge erred in sentencing offender on the basis that he foresaw death as the probable consequence of his conduct – Offender resentenced to a term of six years’ imprisonment with a minimum term of four years’ imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Victoria Legal Aid

BUCHANAN, J.A.:

The appellant, who is now 36 years old, met Stephanie Gracie (“the deceased”), who was then aged 17 years, when they were both studying science at the Victoria University. In August 2003 the appellant and the deceased commenced to live together. In January 2004 they were living in a converted garage at the house of the deceased’s father.

On 14 January 2004 the appellant and the deceased drove to Marysville to discuss problems in their relationship. The appellant, who was addicted to amphetamine, purchased and injected himself with methylamphetamine. He also injected the deceased with methylamphetamine at her request. The appellant then drove the deceased back to Melbourne. He later told the police that she appeared to have a fast pulse, could not stop talking and was thirsty.

When they arrived home, the deceased said she felt very tired. The appellant observed her head rolling back, her eyes rolling in her head and foam at her mouth. The appellant did not seek medical attention for her apparent suffering, but put her to bed at about dawn on 15 January. Some six hours’ later the appellant saw the deceased was not breathing and had changed colour. He called an ambulance. When it arrived a few minutes later the ambulance driver saw that the deceased had died. An autopsy was conducted later by a pathologist who considered that the cause of death was the toxicity of amphetamine.

The appellant was charged with manslaughter of the deceased and, in the alternative, recklessly engaging in conduct which placed the deceased in danger of death. The maximum sentence for the latter offence was ten years’ imprisonment. Subsequently the Crown filed over a fresh presentment omitting the charge of manslaughter. The appellant was arraigned and pleaded guilty to a count of recklessly engaging in conduct placing the deceased in danger of death and a count of possession of cannabis. After a plea, the appellant was sentenced to be imprisoned for a term of six years on the first count, with a minimum term of four years’ imprisonment, and on the second count was convicted and discharged without penalty.

The grounds of appeal are as follows:

“1.The learned sentencing judge erred…

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 Toms

Details

AGLC: R v Toms [2006] VSCA 101
Case: [2006] VSCA 101
Decision Date: 5 May 2006

CaseChat Overview and Summary

The case of R v Toms involved the appellant who was convicted for recklessly engaging in conduct which placed another person in danger of death. The deceased had injected themselves with methylamphetamine, provided by the appellant, which subsequently caused their death. The appellant was sentenced to a term of imprisonment by a sentencing judge, who took into account the foreseeability of death as a probable consequence of the appellant's conduct. The appellant appealed against his sentence, arguing that the sentencing judge erred in considering the foreseeability of death as a relevant factor. The court of appeal reviewed the appeal and determined that the sentencing judge had indeed erred in their approach to sentencing.

The central legal issue before the court was whether the sentencing judge correctly assessed the foreseeability of death as a probable consequence of the appellant's conduct. The court considered the principles of sentencing for reckless endangerment and the appropriate weight to be given to the foreseeability of death in determining an appropriate sentence. The court examined the sentencing judge's reasoning and found that the judge had misapplied the relevant legal principles by placing undue emphasis on the foreseeability of death.

In its judgment, the court of appeal held that the sentencing judge erred in their assessment of the foreseeability of death as a probable consequence of the appellant's conduct. The court emphasised that while the foreseeability of death can be a relevant factor in sentencing, it is not determinative. The court further clarified that the sentencing judge should have focused on the degree of recklessness exhibited by the appellant and the inherent danger posed by injecting a dangerous substance. The court of appeal remitted the case back to the original sentencing court for re-sentencing, taking into account the correct legal principles.

The court of appeal ordered that the appellant be resentenced to a term of six years’ imprisonment, with a non-parole period of four years. This decision recognised the gravity of the offence while also ensuring that the sentencing process was based on an accurate understanding of the relevant legal principles. The court's decision underscores the importance of correctly applying sentencing principles in cases involving reckless endangerment and the potential consequences of such conduct.

Orders