Citation: R v Toohey (No 2) [2017] NSWSC 1217
Court: Supreme Court of New South Wales
Date: 8 September 2017
Judge: Fagan J
Background
The offender, a man aged 35 at the time, was in a four-month relationship with a woman who had three young children. He was not the biological father of any of the children. The family lived at a rural property near Bathurst, and in April 2014, while the mother was recovering from surgery in hospital, the offender was left alone overnight with her youngest child, an eleven-month-old girl.
The following morning the offender drove the infant to a hospital emergency department. She was unconscious in the back seat and could not be revived. Post-mortem examination revealed multiple external head injuries and significant internal injuries, including fresh subdural and subarachnoid haemorrhaging, brain swelling, and bleeding around the optic nerves.
The offender had told police the child fell headfirst from a backyard trampoline. After a seven-day trial, the jury rejected a murder charge but returned a verdict of guilty of manslaughter, a verdict that Fagan J found was consistent only with the jury having accepted that the offender inflicted several blunt-force impacts to the child's head, without the mental state required for murder.
Legal Issues
- What sentence was appropriate for manslaughter arising from a single episode of losing control and inflicting fatal injuries on an infant?
- What weight should be given to the absence of express remorse where the offender maintained a factual account inconsistent with the jury's verdict?
- What was the relevance of the offender's low likelihood of reoffending to the weight given to specific deterrence?
- Whether special circumstances existed to justify reducing the non-parole period below the statutory default ratio of 75%.
Decision
Fagan J identified the objective gravity of the offence as serious. The verdict established that the offender inflicted several blows to the infant's head during a single episode of losing control, causing her death. The child was eleven months old, entirely defenceless, and in the offender's care. The judge treated the absence of any prior similar conduct and the single-episode nature of the offending as relevant to objective seriousness, though they did not diminish the fundamental gravity of causing an infant's death in this manner.
On the question of remorse, the offender tendered a letter to the court but did not give oral evidence on sentence. His account throughout, including the trampoline explanation given to police, was irreconcilable with the facts implicit in the jury's verdict. Fagan J found the offender had not genuinely accepted that he inflicted the fatal injuries and therefore could not treat him as having demonstrated authentic remorse. The absence of remorse was not treated as an aggravating factor, but it meant the offender received no mitigating credit that genuine contrition might otherwise have attracted.
The court accepted that the likelihood of the offender reoffending in a comparable way was low. This finding reduced the weight to be given to specific deterrence. The offender had no relevant prior criminal history, was of mature years compared to many offenders sentenced for comparable manslaughter, and his personal circumstances were regarded as genuinely favourable to rehabilitation.
Fagan J found that special circumstances existed under the sentencing legislation, warranting a departure from the default requirement that at least 75% of the total sentence be served before parole eligibility. A longer parole period under supervision from Community Corrections was considered more likely to support the offender's rehabilitation than a strict application of the default ratio.
Orders Made
- The offender was sentenced to imprisonment with a non-parole period of 4 years and 6 months, commencing 9 April 2014 and expiring 8 October 2018.
- The balance of term was set at 3 years, commencing 9 October 2018 and expiring 8 October 2021.
- The offender was declared eligible for release on parole at the expiration of the non-parole period.
- Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender was notified that the provisions of that Act apply to him and to the offending the subject of the proceedings.
Key Takeaways
- Where an offender's account of events is inconsistent with the facts necessarily implicit in the jury's verdict, a sentencing court cannot treat the offender as having demonstrated genuine remorse, even where some expression of sorrow is made.
- An absence of remorse does not function as a standalone aggravating circumstance; however, it forecloses any mitigating credit that authentic contrition might otherwise have attracted.
- A low likelihood of reoffending is a legitimate basis for reducing the weight given to specific deterrence at sentencing, particularly where the offending arose from a single isolated loss of control rather than a pattern of behaviour.
- Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) may be found where a longer parole period under supervision is judged more conducive to rehabilitation than the statutory default ratio would allow, taking into account the offender's personal circumstances and relative maturity.
- Fagan J applied the notification requirement under s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), a step that flags the potential for future extended supervision or detention applications, though it does not itself impose any such order.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 24 (maximum penalty for manslaughter)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 28, 44
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
Cases:
- R v Hoerler [2004] NSWCCA 184