R v Toohey (No 2) [2017] NSWSC 1217

R v Toohey (No 2) [2017] NSWSC 1217

The offender caused the 11 month old child's death by unlawful and dangerous acts, namely striking the child's head and/or striking her head against something, which carried an appreciable risk of serious injury that a reasonable person in his position would have realised. The Court rejected on the balance of probabilities the offender's trampoline fall account and found that any such fall would not have significantly contributed to the intracranial injuries. Having regard to the seriousness of killing a vulnerable child in her home while abusing a position of trust, but also to the isolated loss of control, lack of prior comparable violence, favourable subjective circumstances, and low...

Jurisdiction
Australia
Judgment Date
08 September 2017
Procedural Posture
Criminal Sentencing for Manslaughter / Sentence After Jury Verdict of Not Guilty of Murder and Guilty of Manslaughter
Outcome
Brendon Toohey was sentenced for manslaughter to imprisonment for 7 years and 6 months with a non-parole period of 4 years and 6 months.
Legal Topics
['manslaughter' 'unlawful and Dangerous Act' 'death of an Infant' 'aggravating and Mitigating Factors' 'remorse' 'specific Deterrence' 'non Parole Period' 'victim Impact Statements']
['criminal Law' 'sentencing'] ['manslaughter' 'unlawful and Dangerous Act' 'death of an Infant' 'aggravating and Mitigating Factors' 'remorse' 'specific Deterrence' 'non Parole Period' 'victim Impact Statements']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Sentencing for Manslaughter / Sentence After Jury Verdict of Not Guilty of Murder and Guilty of Manslaughter

Legal Issues

  1. 1 ['What factual basis should be adopted for sentence after the jury found the offender guilty of manslaughter but not murder.' "Whether the offender's account that the child fell from a trampoline should be accepted for sentencing purposes." 'Whether the manslaughter was properly characterised as unlawful and dangerous act manslaughter rather than manslaughter by criminal negligence.' 'What aggravating and mitigating circumstances applied under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).' 'What sentence and non-parole period were appropriate for the manslaughter of an 11 month old child.']

Ratio Decidendi

The offender caused the 11 month old child's death by unlawful and dangerous acts, namely striking the child's head and/or striking her head against something, which carried an appreciable risk of serious injury that a reasonable person in his position would have realised. The Court rejected on the balance of probabilities the offender's trampoline fall account and found that any such fall would not have significantly contributed to the intracranial injuries. Having regard to the seriousness of killing a vulnerable child in her home while abusing a position of trust, but also to the isolated loss of control, lack of prior comparable violence, favourable subjective circumstances, and low...

Court Disposition

Brendon Toohey was sentenced for manslaughter to imprisonment for 7 years and 6 months with a non-parole period of 4 years and 6 months.

Orders

  • ['For the manslaughter of IS on 2 April 2014 Brendon Toohey is sentenced to imprisonment for a non-parole period of 4 years and 6 months commencing on 9 April 2014 and expiring on 8 October 2018 and a balance of term of 3 years commencing on 9 October 2018 and expiring on 8 October 2021.' 'Brendon Toohey will be...