Regina v. TOGIAS [2002] NSWCCA 363

Reported Decision : (2002) 132 A Crim R 573

New South Wales Court of Criminal Appeal

CITATION : Regina v. TOGIAS [2002] NSWCCA 363 revised - 6/09/2002 FILE NUMBER(S) : CCA 60375/02 HEARING DATE(S) : 21 August 2002 JUDGMENT DATE : 30 August 2002

PARTIES : Regina - appellant Nicolitsa Togias - respondent JUDGMENT OF : Hodgson JA at 1; Simpson J at 33; Smart AJ at 34

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC00/11/0195 LOWER COURT JUDICIAL Solomon DCJ OFFICER :

COUNSEL : Mr. D.J. Bugg QC with Mr. G.T. Bellow for appellant Mr. S. Odgers SC with Mr. I. McClintock for respondent SOLICITORS : Commonwealth DPP for appellant Murphy's Lawyers, Sydney for respondent CATCHWORDS : CRIMINAL LAW - Sentence - Crown appeal - Offender becoming pregnant after arrest and charge - Three-year suspended sentence overturned by Court of Appeal as mainfestly inadequate - On resentencing by District Court, five-year suspended sentence imposed - Evidence from prison authorities that no decision on whether the offender could have her child with her in prison could be made until the offender had served at least four weeks - Evidence that separation of more than one week likely to cause significant long-term psychological damage to the child - Probability of hardship to offender's family - Whether exceptional circumstances - Effect of double jeopardy - CRIMINAL LAW - Sentence - Commonwealth offence - Whether Court can consider directly whether three-years periodic detention is preferable sentencing option. LEGISLATION CITED : Crimes Act 1914 (Cth) ss.16A, 20AB R v. Capper [2000] NSWCCA 63 R v. Carmody (1998) 100 ACrimR 41 R v. Edwards (1996) 90 ACrimR 510 CASES CITED: R v. Lux NSWCCA 26/8/88 R v. Niga NSWCCA 13/4/94 R v. SLR (2000) 116 ACrimR 150 R v. Togias [2001] NSWCCA 522 R v. White [1999] NSWCCA 60 DECISION : Appeal dismissed.