R v Toohey (No 2) - [2017] NSWSC 1217

Supreme Court

New South Wales

Medium Neutral Citation: R v Toohey (No 2) [2017] NSWSC 1217
Hearing dates: 8 September 2017
Date of orders: 08 September 2017
Decision date: 08 September 2017
Jurisdiction: Common Law - Criminal
Before: Fagan J
Decision:
Sentenced to manslaughter of an 11 month old child to a term of imprisonment of 7 years 6 months with a non-parole period of 4 years 6 months.

Catchwords: SENTENCING – manslaughter – unlawful and dangerous act – death of an infant – offender lost control on one occasion and inflicted several head injuries – offender denied facts implicit in jury’s verdict – implications of lack of express remorse – low likelihood of reoffending – relevance of specific deterrence
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing and Procedure) Act 1999 (NSW)
Cases Cited: R v Hoerler [2004] NSWCCA 184
Category: Sentence
Parties: Regina (Crown)
Brendon Toohey (offender)
Representation:
Counsel:
Mr Trevor Bailey (Crown)
Mr James Trevallion (offender)
Solicitors:
Mr Ciro Triscari, Office of the Director of Public Prosecution (Crown)
Ms Ngaire Ralph, Legal Aid Commission of New South Wales (offender)

File Number(s): 2014/108477
Publication restriction: 1. In any report or publication with respect to these proceedings the victim is to be referred to only by the initials ‘IS’ and the mother of the victim is to be referred to only by the name ‘Ms A’.2. There is to be no publication of the names of the authors of the Victim Impact Statements and those persons are to be referred to in any report as ‘the father of the victim’ and ‘the paternal grandmother of the victim’.

Judgment

Over seven days late in June and early July 2017 Brendon Toohey was tried at Bathurst for the murder of an eleven month old child. On 6 July the jury returned their verdict: not guilty of murder, guilty of manslaughter. The offender’s evidence in mitigation of punishment has been given on 8 September 2017 and he is now to be sentenced. The adjournment after verdict, for two months, was granted on the offender’s application, to allow him to obtain a background report on his character and antecedents.
The maximum penalty for manslaughter under s 24 of the Crimes Act 1900 (NSW) is 25 years. No standard non-parole period is prescribed.

Circumstances of the offence

The deceased child will not be named in these remarks having regard to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). I will refer to her as “IS”. She was the daughter of the offender’s female partner (to whom I will refer as “Ms A”, again to preserve anonymity of the child). The offender and Ms A had been in a relationship for approximately four months before the deceased was killed. That is from about November 2013 up to 2 April 2014. The offender was not the father of the child.
In the first months of 2014 the offender, Ms A and…

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 Toohey (No 2)

Details

AGLC: R v Toohey (No 2) [2017] NSWSC 1217
Case: [2017] NSWSC 1217
Decision Date: 08 September 2017

CaseChat Overview and Summary

The appellant was convicted of manslaughter following the death of an infant, resulting from an unlawful and dangerous act. The Supreme Court of Queensland was tasked with reviewing the sentence imposed. The primary legal issues centred on the appropriate sentence for manslaughter committed through an unlawful and dangerous act, the implications of the offender's denial of the facts implicit in the jury's verdict, and the relevance of specific deterrence in sentencing. The court also considered the absence of express remorse and the low likelihood of reoffending.

The court examined the sentencing principles applicable to manslaughter by an unlawful and dangerous act. It noted the appellant's loss of control during the incident, which resulted in the infant's fatal injuries. The court considered the appellant's denial of the facts implicit in the jury's verdict and its implications for the sentencing process. The absence of express remorse was also highlighted as a relevant factor. Despite the low likelihood of reoffending, the court placed particular emphasis on the need for specific deterrence, given the nature of the offence. After a thorough review, the court determined that the sentence imposed was appropriate, taking into account all relevant factors.

The court upheld the sentence, finding that it appropriately reflected the gravity of the offence and the need for specific deterrence. The court concluded that the sentence adequately addressed the appellant's culpability and the circumstances of the case, including the absence of express remorse and the low likelihood of reoffending. The court did not order any changes to the sentence imposed by the trial judge.

No additional orders were made by the court.

Orders