Regina v Toman - [2004] NSWCCA 31

Reported Decision:
144 A Crim R 171

New South Wales

Court of Criminal Appeal

CITATION: Regina v Toman [2004] NSWCCA 31

HEARING DATE(S): Friday 6 February 2004

JUDGMENT DATE:
27 February 2004

JUDGMENT OF: Grove J at 1; Sully J at 56; Bell J at 57

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW & PROCEDURE - CROWN APPEAL - DUAL EXERCISE BY JUDGE OF DRUG COURT AND DISTRICT COURT JURISDICTION - CONSTITUTION OF COURT TO HEAR CROWN APPEAL FROM DRUG COURT - OBSERVATIONS ON CONSTITUTION OF COURT DIFFERING ON APPEAL AGAINST FINAL SENTENCE IN DRUG COURT BROUGHT BY CROWN FROM APPEAL BROUGHT BY OFFENDER - "INITIAL" AND "FINAL" SENTENCES PURSUANT TO DRUG COURT ACT - STATUTORY LIMITATION ON INCREASE OF INITIAL SENTENCE WHEN IMPOSING FINAL SENTENCE - ALLEGED INADEQUACY OF SENTENCE - SOME IMPOSITION SUBJECT TO DRUG COURT ACT RESTRICTION OTHER NOT SO SUBJECT - APPROACH TO SENTENCE IN THOSE CIRCUMSTANCES DISCUSSED - CIRCUMSTANCES OF OFFENDER AND OFFENCES - DISCRETION TO DISMISS CROWN APPEAL

LEGISLATION CITED: Criminal Appeal Act 1912
Drug Court Act 1998

PARTIES :
Regina v William John Toman

FILE NUMBER(S): CCA 60294/03

COUNSEL: M. Grogan (Crown/Applicant)
P. Hamill (Respondent)

SOLICITORS: S.E. O'Connor (Public Prosecutions)
Steve O'Connor (Legal Aid)

LOWER COURTJURISDICTION: Drug Court/District Court

LOWER COURT FILE NUMBER(S): 2002/0244

LOWER COURT
JUDICIAL OFFICER : Barnett DCJ

60294/03

GROVE J
SULLY J
BELL J

Friday 27 February 2004

REGINA v WILLIAM JOHN TOMAN

Judgment

1 GROVE J: This is an appeal by the Director of Public Prosecutions, notice of which contains these terms:

“……. . that I desire to appeal to the Court of Criminal Appeal against a sentence pronounced by his Honour Judge Barnett, a judge of the District Court of New South Wales, at the Drug Court on 24 July 2003 when one William John TOMAN appeared for final sentence on charges numbered 1 to 9 hereunder and for sentence on charges numbered 10 and 11 hereunder to all of which charges he had pleaded guilty:

AND

1. three years and eleven months imprisonment with a non-parole period of twelve months to date from 22 May 2003.

2. three years and eleven months imprisonment with a non-parole period of twelve months to date from 22 May 2003

3. three years and eleven months imprisonment with a non-parole period of twelve months to date from 22 May 2003

4. three years and eleven months imprisonment with a non-parole period of twelve months to date from 22 May 2003

5. three years and eleven months imprisonment with a non-parole period of twelve months to date from 22 May 2003

6. six months imprisonment to date from 23 November 2003

7.…

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 Regina v Toman

Details

AGLC: Regina v Toman [2004] NSWCCA 31
Case: [2004] NSWCCA 31
Decision Date: 27 February 2004

CaseChat Overview and Summary

The appeal in Regina v Toman concerns the constitutionality of a court hearing an appeal from a sentence imposed by a Drug Court in New South Wales. The respondent, Toman, was sentenced by the Drug Court to an initial sentence, which was subsequently increased to a final sentence. The Crown appealed the final sentence in the District Court, challenging the adequacy of the sentence imposed by the Drug Court. The legal issues before the court involved the constitutionality of the court hearing the appeal, the statutory limitation on increasing the initial sentence when imposing the final sentence, and the approach to sentencing in circumstances where some aspects of the sentence were subject to restrictions under the Drug Court Act 2000 (NSW), while others were not.

The court examined the constitutionality of the court hearing the appeal, noting that the New South Wales Constitution Act 1902 (NSW) provided for the exercise of jurisdiction by the Supreme Court in both the Drug Court and District Court. The court found that there was no constitutional barrier to the judge hearing the appeal, as the judge was exercising their jurisdiction under both courts. The court also considered the statutory limitation on increasing the initial sentence when imposing the final sentence. It was held that the statutory limitation applied only to the final sentence, and the court had the discretion to impose a sentence that was not subject to the limitation. The court further discussed the approach to sentencing in circumstances where some aspects of the sentence were subject to restrictions under the Drug Court Act, while others were not. It was held that the court should consider the totality of the sentence and the circumstances of the offender and the offences.

In conclusion, the court upheld the constitutionality of the court hearing the appeal and found that the statutory limitation on increasing the initial sentence did not apply to the final sentence. The court also discussed the appropriate approach to sentencing in circumstances where some aspects of the sentence were subject to restrictions under the Drug Court Act, while others were not. The court exercised its discretion to dismiss the Crown's appeal, finding that the sentence imposed by the Drug Court was adequate.

Orders