Regina v Togias [2001] NSWCCA 522

Regina v Togias [2001] NSWCCA 522

The sentence of three years imprisonment wholly suspended was manifestly inadequate for the respondent's importation as a courier for financial gain of almost one kilogram of MDMA, about double the commercial quantity. The sentencing judge erred by proceeding without adequate evidence about the probable effect of custody on the respondent's infant child and without deferring sentence to permit assessment of whether custody could be arranged humanely with appropriate mother-child contact. The New South Wales statutory limits on periodic and home detention remained applicable to federal offences and did not permit avoidance of the need for an appropriate custodial sentence.

Jurisdiction
Australia
Judgment Date
14 December 2001
Procedural Posture
Crown Appeal Against Sentence in Criminal Proceedings / New South Wales Court of Criminal Appeal; Appeal From District Court Sentence
Outcome
Crown appeal allowed; sentence quashed; matter remitted to the District Court for imposition of appropriate sentence.
Legal Topics
['importation of Commercial Quantity of Narcotics' 'manifest Inadequacy of Sentence' 'suspended Sentence' 'effect of Sentence on Family or Dependants' 'mother and Child Contact in Custody' 'periodic Detention and Home Detention for Federal Offences' 'relevance of International Conventions in Sentencing']
['criminal Law' 'sentencing' 'commonwealth Offences'] ['importation of Commercial Quantity of Narcotics' 'manifest Inadequacy of Sentence' 'suspended Sentence' 'effect of Sentence on Family or Dependants' 'mother and Child Contact in Custody' 'periodic Detention and Home Detention for Federal Offences' 'relevance of International Conventions in Sentencing']

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Procedural Posture

Crown Appeal Against Sentence in Criminal Proceedings / New South Wales Court of Criminal Appeal; Appeal From District Court Sentence

Legal Issues

  1. 1 ['Whether the District Court sentence of three years imprisonment wholly suspended for importing a commercial quantity of MDMA was manifestly inadequate.' "Whether the sentencing judge should have deferred sentencing to obtain evidence about the respondent's assessment for custody and contact with her infant child." "Whether substantial weight could be given under s16A(2)(p) of the Crimes Act 1914 (Cth) to the probable effect of sentence on the respondent's child without exceptional circumstances and adequate evidence." 'Whether s20AB(1A) of the Crimes Act 1914 (Cth) removed the New South Wales time limits for periodic detention and home detention when sentencing for federal offences.' 'What relevance, if any, international conventions and declarations concerning children and breastfeeding had to the sentencing discretion.']

Ratio Decidendi

The sentence of three years imprisonment wholly suspended was manifestly inadequate for the respondent's importation as a courier for financial gain of almost one kilogram of MDMA, about double the commercial quantity. The sentencing judge erred by proceeding without adequate evidence about the probable effect of custody on the respondent's infant child and without deferring sentence to permit assessment of whether custody could be arranged humanely with appropriate mother-child contact. The New South Wales statutory limits on periodic and home detention remained applicable to federal offences and did not permit avoidance of the need for an appropriate custodial sentence.

Court Disposition

Crown appeal allowed; sentence quashed; matter remitted to the District Court for imposition of appropriate sentence.

Orders

  • ['Crown appeal allowed.' 'Sentence imposed in the District Court quashed.' 'Matter remitted to the District Court for imposition of appropriate sentence.']