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Supreme Court 9 November 2001

R v Toki

[2001] NSWSC 1036

Homicide
SENTENCE FOR CONVICTION OF MURDER

Citation: R v Toki [2001] NSWSC 1036
Court: Supreme Court of New South Wales
Date: 9 November 2001
Judge(s): Howie J

Background

A jury convicted the prisoner of the murder of his de facto wife on 10 November 2000, almost a year after the offence occurred on 18 January 1999. The victim was found by ambulance officers suffering severe injuries at their Surry Hills flat. She died in hospital in the early hours of 18 January from a brain injury caused by a blow to the head, with autopsy findings revealing 79 injuries including extensive bruising, fractured ribs, and wounds consistent with being struck by a rod-like implement.

The prisoner had accompanied the victim back from a neighbouring flat in the early hours of 17 January, having broken in through the front door after the victim had sought refuge there overnight. The prisoner maintained throughout that the victim's injuries resulted from a fall in the shower, but the jury rejected that account.

Sentencing was delayed by nearly a year after conviction, primarily due to difficulties in obtaining and presenting psychiatric evidence. Howie J noted this delay was entirely unacceptable and took it into account in fixing the sentence.

  • What was the appropriate total sentence for the murder, having regard to the objective seriousness of the offence?
  • Whether the prisoner's partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 had any bearing on the sentence (having been rejected by the jury).
  • Whether there were "special circumstances" under s 44 of the Crimes (Sentencing Procedure) Act 1999 warranting a non-parole period shorter than three-quarters of the total sentence.
  • What weight should be given to the prisoner's criminal history, particularly in light of the principle in Veen v The Queen (No. 2), and to the psychiatric evidence concerning future risk.
  • How the sentence should interact with an existing sentence the prisoner was serving for an unrelated offence.

Decision

Howie J assessed the offence as objectively serious. The prisoner had subjected the victim to a sustained and brutal assault, using both his hands and a weapon. The attack involved elements of domestic violence, with evidence indicating the victim had sought to escape the prisoner the night before her death. The jury's rejection of the substantial impairment defence meant the full weight of the murder conviction applied, though the psychiatric evidence remained relevant to sentencing.

The prisoner had a significant criminal history, including prior violence, and psychiatric evidence indicated he presented a real risk of future danger to others. Howie J applied the principle from Veen v The Queen (No. 2) that a sentence must not be extended beyond what is proportionate to the crime purely to protect the community, but that the risk of reoffending remains a relevant consideration in fixing the sentence within that proportionate range.

Howie J declined to find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999. The total sentence was sufficiently long that maintaining the standard three-quarters non-parole ratio would still produce a parole period of adequate length to address any rehabilitation needs upon eventual release. Psychiatric evidence from Dr Allnutt concerning the prisoner's recent behavioural improvement was acknowledged but did not displace that conclusion.

The court also took into account the delay in sentencing, treating the resultant prolonged uncertainty for the prisoner as a mitigating factor. The sentence was structured to commence from the date the prisoner would have been eligible for parole on his existing unrelated sentence, with the totality principle applied to both the head sentence and the non-parole period.

Orders Made

  • The prisoner was sentenced to 24 years imprisonment for murder, commencing 18 March 2001.
  • A non-parole period of 18 years was imposed, running from 18 March 2001 and expiring on 17 March 2019.

Key Takeaways

  • Howie J confirmed that, even where a jury rejects a substantial impairment defence, the underlying psychiatric evidence retains relevance at the sentencing stage.
  • Under Veen v The Queen (No. 2), a court may take the risk of future dangerousness into account in fixing a sentence within a proportionate range, but cannot extend the sentence beyond proportionality for protective purposes alone.
  • No finding of special circumstances was warranted where the total sentence was long enough that the standard non-parole ratio of three-quarters would itself produce a sufficiently extended parole period.
  • Unreasonable delay between conviction and sentence is a factor a sentencing court may weigh in the prisoner's favour, even where the prisoner was already serving a concurrent sentence during that period.
  • Sentences for multiple terms may commence from the parole eligibility date of an existing sentence, with the totality principle applied to ensure the overall sentencing outcome is not disproportionate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (special circumstances and non-parole periods)

Cases:
- Veen v The Queen (No. 2) (1988) 164 CLR 465