REGINA v TOTTEN [2003] NSWCCA 207

REGINA v TOTTEN [2003] NSWCCA 207

The sentencing judge's discretion miscarried because he failed to take into account, in favour of the applicant, the likelihood that at least part of the sentences would be served in some form of protective custody, both when determining sentence length and whether special circumstances existed. On resentencing, the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
14 August 2003
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court; Appeal Allowed and Applicant Resentenced
Outcome
Appeal allowed; leave to appeal granted; sentence for the principal offence quashed and lesser sentence imposed; sentence for aggravated indecent assault confirmed.
Legal Topics
['sexual Offences' 'child Sexual Assault' 'protective Custody' 'special Circumstances' 'sentence Appeal']
['criminal Law' 'sentencing'] ['sexual Offences' 'child Sexual Assault' 'protective Custody' 'special Circumstances' 'sentence Appeal']

Source-derived case record

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court; Appeal Allowed and Applicant Resentenced

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing to take into account delay between the offences, complaint, arrest and sentencing.' 'Whether the sentencing judge erred in treating the offences as not isolated instances.' "Whether the sentencing judge improperly speculated that the applicant denied the complainant's allegations after she reported them to her mother." 'Whether the sentencing judge erred by failing to take into account the likelihood that the applicant would serve at least part of his sentence in protective custody when fixing sentence and considering special circumstances.']

Ratio Decidendi

The sentencing judge's discretion miscarried because he failed to take into account, in favour of the applicant, the likelihood that at least part of the sentences would be served in some form of protective custody, both when determining sentence length and whether special circumstances existed. On resentencing, the evidence showed that the applicant had served at least the first eight months in more onerous and disadvantageous custody conditions, and his need for close supervision on parole supported a finding of special circumstances and a reduced sentence for the principal offence.

Court Disposition

Appeal allowed; leave to appeal granted; sentence for the principal offence quashed and lesser sentence imposed; sentence for aggravated indecent assault confirmed.

Orders

  • ['Leave to appeal granted.' 'Confirm the sentence of eighteen months commencing on 12 September 2002 for the offence of aggravated indecent assault.' 'Quash the sentence imposed for the offence of sexual intercourse with a child between the age of ten years and sixteen years and in lieu sentence the applicant to...