R v Toohey

Case [2019] NSWCCA 182


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Toohey [2019] NSWCCA 182
Hearing dates: 5 July 2019
Decision date: 09 August 2019
Before: Gleeson JA at [1]
Button J at [93]
Lonergan J at [94]
Decision:

(1)   Crown appeal against sentence allowed.

 

(2)   The sentence imposed by Judge Bennett SC in the District Court on 7 March 2019 be set aside.

 (3)   In lieu, sentence the respondent to 6 years and 9 months imprisonment consisting of a non-parole period of 4 years 6 months commencing 9 March 2016 and expiring on 8 September 2020, with a balance of term of 2 years 3 months commencing on 9 September 2020 and expiring on 8 December 2022. The respondent is eligible for release on parole on 8 September 2020.
Catchwords: CRIME – appeals – Crown appeal against sentence – where respondent guilty of sexual intercourse with child under 10 in circumstances of aggravation – victim of offending was 11-month-old infant daughter of the respondent’s partner – where victim suffered internal injury to her rectum – sentencing judge not satisfied that offending was sexually motivated – sentenced to 4 years and 6 months with non-parole period of 3 years – where sentence largely concurrent with manslaughter sentence involving same child – whether sentence manifestly inadequate – objective seriousness of the offending – application of the totality principle – exercise of the residual discretion pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) – consideration of factors relevant to the exercise of the discretion – expiration of the non-parole period imposed by the sentencing judge – respondent resentenced
Legislation Cited: Crimes Act 1900 (NSW), ss 18(1)(b), 24, 61H, 66A(2), 578A
Criminal Appeal Act 1912 (NSW), s 5D
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4, Div 1A
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cahyadi v R [2007] NSWCCA 1
Clarkson v R; EJA v R (2011) 32 VR 36; [2011] VSCA 157
CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9
Croxon v R [2017] NSWCCA 213
CT v R [2017] NSWCCA 15
CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
EG v R [2015] NSWCCA 21
Essex v R [2013] NSWCCA 11
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
He Kaw Teh v R (1985) 157 CLR 523; [1985] HCA 43
MLP v R [2014] NSWCCA 183
Mulato v R [2006] NSWCCA 282
Ng v R [2011] NSWCCA 227; (2011) 214 A Crim R 191
Pannowitz v R [2016] NSWCCA 13
R v CTG [2017] NSWCCA 163
R v Cuc Thanh Pham (1991) 55 A Crim R 128
R v Dunn (Court of Criminal Appeal (NSW), 15 April 1992, unrep)
R v Gavel [2014] NSWCCA…

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R v Toohey [2019] NSWCCA 182
Case
[2019] NSWCCA 182
Decision Date

CaseChat Overview and Summary

In this case, the respondent was convicted of engaging in sexual intercourse with an infant, his partner's 11-month-old daughter, resulting in internal injury to the child's rectum. The Crown appealed against the sentence, arguing it was manifestly inadequate. The court was tasked with determining whether the original sentence of 4 years and 6 months, with a non-parole period of 3 years, was appropriate given the severity of the crime and the totality principle. The sentencing judge had not found the offending to be sexually motivated, which influenced the original sentence.

The central legal issue was whether the original sentence was manifestly inadequate, considering the objective seriousness of the offence. The Crown argued that the sentence did not adequately reflect the gravity of the crime, particularly given the application of the totality principle and the need to exercise residual discretion under section 5D of the Criminal Appeal Act 1912 (NSW). The court had to balance the severity of the offence against the sentencing judge's findings and the need to avoid excessive punishment.

The court found that the original sentence was indeed manifestly inadequate, considering the objective seriousness of the crime and the need to apply the totality principle. The court emphasised that the severity of the offence warranted a more substantial sentence. After considering relevant factors, the court exercised its residual discretion and resentenced the respondent. The new sentence was not disclosed in the text, but it was noted that the non-parole period imposed by the original sentencing judge had expired.

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