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Court of Criminal Appeal 9 August 2019

R v Toohey

[2019] NSWCCA 182

Sexual offencesHomicide
CRIME APPEALS CROWN APPEAL AGAINST SENTENCE VICTIM OF OFFENDING WAS 11 MONTH PAROLE PERIOD OF 3 YEARS

Citation: R v Toohey [2019] NSWCCA 182
Court: Court of Criminal Appeal, New South Wales
Date: 9 August 2019
Judge(s): Gleeson JA; Button J; Lonergan J

Background

The respondent was convicted after a judge-alone trial in the District Court of one count of sexual intercourse with a child under 10 years in circumstances of aggravation, contrary to s 66A(2) of the Crimes Act 1900 (NSW). The victim was an eleven-month-old infant girl, the daughter of his partner, who had been left in his sole care overnight while her mother was hospitalised. The offence, which involved penetration causing internal injury to the child's rectum, occurred during the same twenty-four-hour period as a separate offence of manslaughter involving the same child. The child died as a result of the manslaughter offence.

The respondent had previously been sentenced in the Supreme Court to 7 years and 6 months imprisonment for the manslaughter, with a non-parole period of 4 years and 6 months. For the sexual intercourse offence, the District Court imposed a sentence of 4 years and 6 months with a non-parole period of only 3 years, structured largely concurrently with the manslaughter sentence. The practical effect was that the respondent became eligible to apply for parole the day after sentencing and received only five additional months on his non-parole period for the sexual offence.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW) on the single ground that the District Court sentence was manifestly inadequate.

  • Whether the sentence of 4 years and 6 months (non-parole period of 3 years) for aggravated sexual intercourse with a child under 10 was manifestly inadequate.
  • Whether the sentencing judge properly assessed the objective seriousness of the offending, particularly in the context of a finding that the conduct was not sexually motivated.
  • Whether the totality principle was correctly applied in structuring the sentence concurrently with the manslaughter sentence.
  • Whether the Court of Criminal Appeal should exercise its residual discretion under s 5D to decline to intervene despite finding error, particularly given the non-parole period had already expired by the time of the appeal.

Decision

Gleeson JA, with Button J and Lonergan J agreeing, held that the sentence was manifestly inadequate. The sentencing judge's finding that the offending was not sexually motivated was accepted as a relevant consideration, but the Court of Criminal Appeal found it could not operate so dramatically to reduce the sentence as to effectively render the sexual offence almost invisible within the overall sentencing structure. The conduct remained seriously criminal, caused real physical injury to a wholly vulnerable infant, and carried a maximum of life imprisonment with a standard non-parole period of 15 years.

The Court found the District Court judge had failed to give sufficient weight to the objective gravity of the offence. Even accepting the absence of sexual motivation, the penetration of an eleven-month-old infant causing internal injury was objectively serious conduct that required condign punishment in its own right.

On the question of totality, the Court acknowledged the principle that multiple sentences should not produce an outcome disproportionate to the overall criminality. However, the concurrent structure adopted below was found to have given excessive weight to that principle, to the point of substantially discounting the seriousness of the sexual offence.

The Court then turned to the residual discretion under s 5D, noting the non-parole period imposed below had already expired. After taking that factor into account, the Court found the circumstances still warranted resentencing, and imposed a fresh sentence dating from the same commencement date as the original sentence.

Orders Made

  • Crown appeal against sentence allowed.
  • Sentence imposed by Judge Bennett SC in the District Court on 7 March 2019 set aside.
  • Respondent resentenced to 6 years and 9 months imprisonment, comprising a non-parole period of 4 years and 6 months commencing 9 March 2016 and expiring 8 September 2020, with a balance of term of 2 years and 3 months commencing 9 September 2020 and expiring 8 December 2022.
  • Respondent eligible for release on parole on 8 September 2020.

Key Takeaways

  • A finding that a sexual offence against a child was not sexually motivated does not, by itself, justify a sentence that effectively merges that offending into a concurrent sentence for another offence arising from the same events. The Court of Criminal Appeal confirmed that condign punishment remains necessary regardless of motivation.
  • Under s 66A(2) of the Crimes Act 1900, the broad range of factual circumstances in which aggravated child sexual offences can be committed means courts must exercise particular care when comparing sentences across cases, as no "typical" offence exists.
  • The totality principle requires that cumulative sentences not be disproportionate to overall criminality, but that principle cannot operate to reduce a serious offence to near insignificance in the sentencing structure.
  • Where a non-parole period has already expired by the time a Crown appeal is heard, the Court retains a residual discretion under s 5D of the Criminal Appeal Act 1912 to decline to intervene. Here, however, the degree of inadequacy was sufficient to justify resentencing, with the expiry of the original non-parole period addressed through moderation of the extent of accumulation rather than declining to act.
  • Resentencing on a Crown appeal resulted in the mandatory custodial period beyond the manslaughter non-parole period increasing from 5 months to 1 year and 11 months, reflecting the Court's assessment that the sexual offence required meaningful additional punishment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(b), 24, 66A(2), 578A
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4, Div 1A
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)

Cases:
- R v Toohey (No 2) [2017] NSWSC 1217
- R v Toohey (No 1) [2017] NSWSC 846
- CMB v Attorney-General (NSW) (2015) 256 CLR 346
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- MLP v R [2014] NSWCCA 183
- Bugmy v The Queen (2013) 249 CLR 571
- CTM v The Queen (2008) 236 CLR 440
- CT v R [2017] NSWCCA 15
- R v CTG [2017] NSWCCA 163
- Pannowitz v R [2016] NSWCCA 13
- Cahyadi v R [2007] NSWCCA 1
- Ng v R (2011) 214 A Crim R 191
- Everett v The Queen (1994) 181 CLR 295
- He Kaw Teh v R (1985) 157 CLR 523