Toman v The Queen - [2018] NSWCCA 51

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Toman v R [2018] NSWCCA 51
Hearing dates: 21 March 2018
Date of orders: 21 March 2018
Decision date: 21 March 2018
Before: Bathurst CJ at [1]
Johnson J at [2]
Price J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – break enter and steal – whether sentencing judge erred by rejecting unchallenged psychiatrists’ opinions – diagnosis of schizophrenia - clear planning of offence – no error found
Legislation Cited: Crimes Act 1900 (NSW), ss 112(1)(a), 114(1)(c)
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
House v The King (1936) 55 CLR 499; [1936] HCA 40
Yang v R [2012] NSWCCA 49; (2012) 219 A Crim R 550
Barbieri v R [2016] NSWCCA 295
Category: Principal judgment
Parties: William John Toman (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Pararajasingham (Applicant)
A Mitchelmore (Respondent)
Solicitors:
R F Bergagnin & Co Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/232095
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

15 May 2017

Before:

Colefax SC DCJ

File Number(s):

2015/232095

Judgment

BATHURST CJ: I agree.
JOHNSON J: I also agree.
PRICE J: William John Toman (“the applicant”) seeks leave to appeal against an aggregate sentence imposed upon him by Judge Colefax SC (“the judge”) in the District Court at Parramatta on 13 March 2017.
The applicant had pleaded guilty in the Local Court to the following offences:

Sequence 1: On 30 July 2015, have face disguised with intent to commit an indictable offence, namely, break, enter and steal contrary to s 114(1)(c) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is imprisonment for 7 years.

Sequence 6: On 30 July 2015, break, enter and steal contrary to s 112(1)(a) of the Crimes Act. The maximum penalty for this offence is imprisonment for 14 years.

Sequence 9: On 31 July 2015, break, enter and steal contrary to s 112(1)(a) of the Crimes Act. The maximum penalty for this offence is imprisonment for 14 years.

The applicant adhered to his pleas of guilty in the District Court and asked, in relation to Sequence 9, that the offences of furnishing a false statement to a licensee and disposing of property be taken into account on a Form 1.
The judge imposed an aggregate term of imprisonment of 5 years, with a non-parole period of 3 years 9 months.
Before imposing the aggregate sentence, his Honour stated the following indicative sentences:

Sequence 1: 3 years minus a discount of 25% for the plea of guilty, that is 2 years 3 months.

Sequence 6: 4 years minus 25% for the plea of guilty, that is 3 years.

Sequence 9 (and Form 1): 4 years 6 months minus 25% for the plea of guilty, that is 3 years 4 months.

His…

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 Toman v The Queen

Details

AGLC: Toman v The Queen [2018] NSWCCA 51
Case: [2018] NSWCCA 51
Decision Date: 21 March 2018

CaseChat Overview and Summary

In the matter of Toman v The Queen, the appellant, Toman, sought to appeal his sentence for a break, enter and steal offence. The appeal was heard in the High Court of Australia. The central issue was whether the sentencing judge erred by disregarding the unchallenged opinions of two psychiatrists who diagnosed Toman with schizophrenia. Toman's legal representatives argued that this misdirection led to an unjust outcome. The court was required to determine if the sentencing judge correctly assessed the evidence and whether there was any error in the application of the sentencing principles.

The court examined the sentencing judge's reasoning and found that the judge had considered all relevant evidence, including the psychiatric reports. The judge weighed the evidence of Toman's mental health against the gravity of the offence, which involved clear planning and execution. The court held that there was no error in the judge's approach or in the application of the sentencing principles. The judge had appropriately balanced Toman's mental health issues with the need for punishment and deterrence.

Given the thorough analysis and the absence of any misdirection, the court dismissed the appeal. The court found that the sentencing judge had correctly assessed the evidence and applied the relevant legal principles. The decision to reject the unchallenged psychiatric opinions was supported by the evidence and did not amount to an error. The High Court affirmed the original sentence, ensuring that the balance between justice and the need for deterrence was maintained.

Orders