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:
Solicitors:
Mr Trevor Bailey (Crown)
Mr James Trevallion (offender)
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
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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.
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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
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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.
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In the first months of 2014 the offender, Ms A and…
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- AGLC
- R v Toohey (No 2) [2017] NSWSC 1217
- Case
- [2017] NSWSC 1217
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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