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Court of Criminal Appeal 13 May 2003

Regina v Toki

[2003] NSWCCA 125

HomicideDomestic & family violence
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE MURDER WHETHER SENTENCE EXCESSIVE

Citation: Regina v Toki [2003] NSWCCA 125
Court: NSW Court of Criminal Appeal
Date: 13 May 2003
Judge(s): Levine J, Hidden J, Smart AJ

Background

The appellant was tried before Howie J and a jury for the murder of his de facto partner at their Surry Hills flat in January 1999. The deceased was found with severe injuries, including 79 identified wounds, multiple fractures, and a fatal brain injury. The appellant initially claimed she had fallen in the shower after taking ecstasy, but the medical and factual evidence at trial contradicted that account.

The jury found the appellant guilty of murder. Howie J sentenced him to 24 years imprisonment with a non-parole period of 18 years. The appellant sought to challenge both the conviction and the sentence on appeal.

The appeal against conviction turned on the adequacy of the trial judge's direction to the jury concerning evidence of mental disorder as it bore on intent. The sentence appeal raised broader questions about the appropriate sentencing range for killings arising in the context of domestic relationships.

  • Whether evidence of mental disorder was relevant to the appellant's intention at the time of the killing, and whether the trial direction on that evidence was adequate
  • Whether substantial impairment under s 23A of the Crimes Act 1900 had been established
  • Whether provocation was properly left to the jury
  • Whether the sentence of 24 years (non-parole period: 18 years) was manifestly excessive
  • What the correct sentencing range is for unpremeditated domestic killings, particularly where aggravating factors are present

Decision

The Court unanimously dismissed the appeal against conviction. Hidden J (with whom Smart AJ agreed on this point) found no error in the trial judge's handling of the mental disorder evidence, the substantial impairment direction, or the leave of provocation to the jury.

All three judges agreed that the original sentence of 24 years was manifestly excessive. Hidden J conducted a detailed survey of comparable "relationship murder" cases and concluded that sentences exceeding 20 years are unusual where the killing was not premeditated, absent particularly bad circumstances or serious aggravating features.

The judges diverged on the appropriate substitute sentence. Hidden J would have imposed 20 years with a non-parole period of 15 years. Levine J and Smart AJ concluded that the combination of aggravating factors in this case, specifically the extreme brutality of the killing, the appellant's prior history of violence toward the deceased, his criminal record, and the fact he was on bail at the time, justified a higher sentence than Hidden J proposed.

The majority (Levine J and Smart AJ) settled on a head sentence of 22 years with a non-parole period of 16 years and 6 months, finding that anything less would fail to adequately reflect the gravity of the offending.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence allowed; original sentence quashed
  • In lieu thereof: imprisonment for 22 years commencing 18 March 2001, with a non-parole period of 16 years and 6 months expiring 17 September 2017, at which date the appellant would become eligible for parole

Key Takeaways

  • The Court of Criminal Appeal confirmed that evidence of mental disorder can be relevant to whether an accused formed the requisite intent for murder, but found no misdirection on that issue in this trial.
  • A sentence exceeding 20 years for an unpremeditated domestic killing is unusual and requires either particularly grave circumstances surrounding the killing itself or significant aggravating factors beyond those ordinarily present.
  • Where multiple serious aggravating factors combine, including extreme brutality, a history of prior violence against the victim, a criminal record, and offending on bail, a sentence in excess of 20 years may be warranted even in the absence of premeditation.
  • In allowing the sentence appeal, the majority reduced the head sentence from 24 years to 22 years and the non-parole period from 18 years to 16 years and 6 months, reflecting the principle that the original sentence overshot the appropriate range.
  • The three-judge panel in this case produced divergent sentencing conclusions, with Hidden J favouring 20 years and the majority settling on 22 years, illustrating the inherent difficulty in calibrating sentences for serious domestic violence homicides.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)

Cases
- Hawkins v The Queen (1994) 179 CLR 500
- R v Barry [2000] NSWCCA 138
- R v Berger (Finlay J, unreported, 21 March 1995)
- R v Birac [1999] NSWSC 61
- R v Bond [2000] NSWSC 1059
- R v Chetcuti (CCA, unreported, 24 December 1993)
- R v Cikos [2001] NSWSC 35
- R v Corrigan (Finlay J, unreported, 15 April 1993)
- R v Everett (CCA, unreported, 13 December 1995)
- R v Gosling [2002] NSWCCA 351
- R v Herring (Badgery-Parker J, unreported, 4 December 1995)
- R v Keir [2000] NSWSC 111
- R v Lewis [2001] NSWCCA 448
- R v Miles [2002] NSWCCA 276
- R v Park (Sperling J, unreported, 3 August 2000)
- R v S [1979] 2 NSWLR 1
- R v Street (CCA, unreported, 17 December 1996)
- R v Whitmore (CCA, unreported, 23 July 1998)