R v Toma [2018] NSWCCA 45

R v Toma [2018] NSWCCA 45

The sentencing judge erred in treating the offences as towards the bottom of the range because the presence of only one victim did not reduce the seriousness of the offences against that victim and the victim's apparent willingness was not mitigating. Given the complainant's age, the penile-vaginal intercourse, the maximum penalty, and the need for general deterrence, the intensive correction order sentence was manifestly inadequate and full-time imprisonment was warranted. However, the Court exercised the residual discretion not to resentence because of the respondent's remand custody, extraordinary delay, onerous lengthy bail conditions, and the disruption that imprisonment would cause...

Jurisdiction
Australia
Judgment Date
23 March 2018
Procedural Posture
Crown Appeal Against Sentence Under S 5 D of the Criminal Appeal Act 1912 (nsw) / Appeal From the District Court of New South Wales Sentence Imposed on 2 November 2017
Outcome
Appeal dismissed.
Legal Topics
['participating as a Client in Acts of Child Prostitution' 'manifest Inadequacy of Sentence' 'objective Seriousness' 'general Deterrence' 'residual Discretion on Crown Sentence Appeal' 'intensive Correction Order']
['criminal Law' 'sentencing'] ['participating as a Client in Acts of Child Prostitution' 'manifest Inadequacy of Sentence' 'objective Seriousness' 'general Deterrence' 'residual Discretion on Crown Sentence Appeal' 'intensive Correction Order']

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Procedural Posture

Crown Appeal Against Sentence Under S 5 D of the Criminal Appeal Act 1912 (nsw) / Appeal From the District Court of New South Wales Sentence Imposed on 2 November 2017

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessing the objective seriousness of the offending as towards the bottom of the range.' 'Whether the sentence of imprisonment for one year and eight months to be served by way of an intensive correction order was manifestly inadequate.' 'Whether the Court should exercise the residual discretion not to resentence despite finding manifest inadequacy.']

Ratio Decidendi

The sentencing judge erred in treating the offences as towards the bottom of the range because the presence of only one victim did not reduce the seriousness of the offences against that victim and the victim's apparent willingness was not mitigating. Given the complainant's age, the penile-vaginal intercourse, the maximum penalty, and the need for general deterrence, the intensive correction order sentence was manifestly inadequate and full-time imprisonment was warranted. However, the Court exercised the residual discretion not to resentence because of the respondent's remand custody, extraordinary delay, onerous lengthy bail conditions, and the disruption that imprisonment would cause...

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.']