R v Toumo'ua

Case [2017] ACTCA 9


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

R v Toumo’ua

Citation:

[2017] ACTCA 9

Hearing Date:

24 February 2017

DecisionDate:

22 March 2017

Before:

Murrell CJ, Rangiah J and Walmsley AJ

Decision:

1. Appeal allowed.

2. Sentences imposed by the primary judge set aside.

3. Respondent re-sentenced to a total of 6 years’ imprisonment (see [113]–[114]).

4. Nonparole period of 3 years’ imprisonment.

Catchwords:

APPEAL – Criminal Law – Crown appeal against sentence – nature of Crown appeal – whether specific error in allowing a discount of 25 per cent for each guilty plea – approach to discount for guilty pleas –  whether sentences were manifestly inadequate – whether specific error in setting a low nonparole period – re-sentence

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) s 22

Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)

Crimes (Sentencing) Act 2005 (ACT) ss 7, 10(2)–(3), 33(1), 35, 65

Crimes Act 1900 (ACT) s 114B

Crimes Act 1914 (Cth) ss 16A(1), 16A(2)(g)

Criminal Appeal Act 1912 (NSW) s 5D

Criminal Code 2002 (ACT) ss 308, 311

Human Rights Act 2004 (ACT) ss 22(2)(i), 30

Supreme Court Act 1933 (ACT) ss 37E(2)(a), 37)(1)(b), 37O(7)

Cases Cited:

Afiouny v The Queen [2017] NSWCCA 23

Barbaro v The Queen [2014] HCA 2; 253 CLR 58

Barbieri v The Queen [2016] NSWCCA 295

Bui v Director of Public Prosecutions [2012] HCA 1; 244 CLR 638

CMB v Attorney-General (NSW) [2015] HCA 9; 317 ALR 308

Coggan v The Queen [2013] ACTCA 49

Dinsdale v The Queen [2000] HCA 54; 202 CLR 321

Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208; 298 FLR 397

Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237

Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462

Haines v The Queen [2016] NSWCCA 90

House v The King (1936) 55 CLR 499

Inge v The Queen [1999] HCA 55; 199 CLR 295

Kentwell v The Queen [2014] HCA 37; 252 CLR 601

Lowe v The Queen [1984] HCA 46; 154 CLR 606

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Millard v The Queen [2016] ACTCA 14

Milat v The Queen [2014] NSWCCA 29

Monfries v The Queen [2014] ACTCA 46

Power v The Queen (1974) 131 CLR 623

R v Allred [2015] ACTSC 327

R v Baker [2000] NSWCCA 85

R v Burton [2008] NSWCCA 128

R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1

R v Chatfield [2012] ACTCA 32

R vDuffy [2014] ACTCA 53; 297 FLR 359

R v Harrington [2016] ACTCA 10; 11 ACTLR 215

R v Hatzisavvas; R v Lopez-Rios [2016] NSWCCA 147

R v Lachlan [2015] NSWCCA 178

R v Palu [2002] NSWCCA 381; 134 A Crim R174

R v Pantano (1990) 49 A Crim R 328

R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510

R v Sutton [2004]…

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AGLC
R v Toumo'ua [2017] ACTCA 9
Case
[2017] ACTCA 9
Decision Date

CaseChat Overview and Summary

The Crown appealed against the sentences imposed by the primary judge on the respondent, Toumo'ua, who had pleaded guilty to charges of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm. The appeal concerned the adequacy of the sentences and the appropriateness of the discount applied for the guilty pleas.

The central legal issues before the Court of Appeal were whether the sentences imposed were manifestly inadequate, whether the 25 per cent discount for each guilty plea was an error, and whether the non-parole period was unduly low. The Court was required to consider the principles governing Crown appeals against sentence and the proper approach to applying discounts for guilty pleas in sentencing.

The Court found that the primary judge had erred in allowing a 25 per cent discount for each guilty plea, stating that such a discount should be applied to the sentence that would otherwise be imposed, not to the individual charges. Furthermore, the Court determined that the total sentences imposed were manifestly inadequate given the gravity of the offences and the respondent's prior criminal history. Consequently, the Court allowed the appeal, set aside the original sentences, and re-sentenced the respondent to a total of 6 years’ imprisonment with a non-parole period of 3 years.

Orders

Orders of the court

1. Appeal allowed.

2. Sentences imposed by the primary judge set aside.

3. Respondent re-sentenced to a total of 6 years’ imprisonment (see [113]–[114]).

4. Nonparole period of 3 years’ imprisonment.

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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