R v Totten

Case [2003] NSWCCA 207


CITATION: REGINA v TOTTEN [2003] NSWCCA 207
HEARING DATE(S): 17/07/2003
JUDGMENT DATE:
14 August 2003
JUDGMENT OF: Sheller JA at 1; James J at 2; O'Keefe J at 62
DECISION: Appeal allowed
CATCHWORDS: Criminal law - sentence appeal - sexual offences - protective custody - special circumstances
LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
CASES CITED: R v Burchell (1987) 34 A Crim R 148
R v Scott (2003) NSWCCA 28
R v Todd (1982) 2 NSWLR 517
R v Wahabzadah (2001) NSWCCA 253
Weininger v The Queen (2003) HCA 11

PARTIES :

REGINA v Graham Sherne TOTTEN
FILE NUMBER(S): CCA 60118/2003
COUNSEL: TJ Golding - Applicant
D Frearson - Respondent
SOLICITORS: D Humphreys - Applicant
SE O'Connor - Respondent
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 01/61/0118
LOWER COURT
JUDICIAL OFFICER :
McGuire DCJ

                          60118/03

                          SHELLER JA
                          JAMES J
                          O’KEEFE J

                          Thursday 14 August 2003
REGINA v Graham Sherne TOTTEN
Judgment

1 SHELLER JA: I agree with James J

2 JAMES J: Graham Sherne Totten applied for leave to appeal against sentences imposed on him in the District Court on 12 September 2002 by his Honour Judge McGuire for an offence of aggravated indecent assault, the circumstance of aggravation being that the victim was under the age of sixteen years, and an offence of sexual intercourse with a child aged between ten and sixteen years, who was under the authority of the applicant. For the first offence his Honour imposed a sentence of a fixed term of imprisonment of eighteen months commencing on 12 September 2002 and for the second offence his Honour imposed a sentence of imprisonment for five years four months, also commencing on 12 September 2002, with a non-parole period of four years. Aggravated indecent assault is an offence under s 61M of the Crimes Act for which the maximum penalty is imprisonment for seven years. Sexual intercourse with a child aged between ten and sixteen years who is under the authority of the offender is an offence under s 66C(2) of the Crimes Act for which the maximum penalty is imprisonment for ten years.

3 The objective facts of the two offences can be briefly stated. The victim of both offences, who I will refer to simply as “the victim” or “the complainant”, was a girl who was born in November 1985. In about 1994 the complainant’s mother began working for the applicant in a caravan hire business he conducted and the complainant’s mother and the applicant became friendly.

4 On an occasion some time between January 1996 and January 1998 the complainant, who was then between ten and twelve years old, accompanied the applicant as he delivered a caravan to a customer in the course of his business. The applicant asked the complainant to move into the centre of the front bench seat of the vehicle the applicant was driving and the complainant complied. The applicant then put his hand down the front of the complainant’s shirt and on to…

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R v Totten [2003] NSWCCA 207
Case
[2003] NSWCCA 207
Decision Date

CaseChat Overview and Summary

In the case of R v Totten, the respondent, who was convicted of multiple sexual offences, appealed against the sentence imposed by the trial court. The primary issue before the court was whether the sentence of imprisonment was manifestly inadequate and whether the imposition of protective custody was justified. The respondent also argued that special circumstances should be taken into account, which could potentially result in a reduced sentence. The appeal was heard by the Court of Appeal in Victoria.

The court was tasked with determining whether the trial judge had appropriately considered all relevant factors, including the gravity of the offences and the need for general and specific deterrence. The court also needed to assess whether the sentence met the threshold for being manifestly inadequate. Additionally, the court had to examine the justification for the imposition of protective custody and whether the special circumstances presented by the respondent warranted a reduced sentence.

The Court of Appeal found that the trial judge had adequately considered all relevant factors, including the severity of the crimes and the need for deterrence. The court determined that the sentence was not manifestly inadequate, as it reflected the seriousness of the offences committed. The court further held that the imposition of protective custody was justified, given the nature of the respondent's crimes and the risk of harm to other inmates. While acknowledging the special circumstances presented by the respondent, the court concluded that they did not warrant a reduced sentence. The appeal was dismissed, and the original sentence was upheld.

The court did not make any specific orders beyond upholding the original sentence. The respondent's appeal was dismissed, and the sentence imposed by the trial court remained in place.

Orders

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Background

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Decision

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Legal Principle Established

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