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
[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.
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Details
AGLC
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.