Key Facts
- •Otis Tomney (41) convicted of burglary (26 November 2021) and two counts of possession of Class A drugs with intent to supply and possession of a bladed article (29 December 2020).
- •Sentenced to two years' imprisonment suspended for two years with a thinking skills program and a 20-day rehabilitation activity requirement.
- •Extensive criminal record: 31 convictions for 120 offences, including numerous burglaries.
- •At the time of the offences, Tomney was a drug addict receiving benefits.
- •Tomney claimed at trial (falsely) that he had stolen the drugs and was looking for a friend during the burglary.
- •Pre-sentence report indicated a medium risk of re-offending and harm, but also noted progress in addressing drug addiction with the help of an opioid blocker.
Legal Principles
Minimum term for burglary under section 314 of the Sentencing Code.
Sentencing Act
Consideration of whether a custodial sentence or a suspended sentence better protects the public.
Sentencing Guidelines
Relevant considerations for determining whether it is unjust to impose a minimum term include the realistic prospect of rehabilitation.
Offence-Specific Guidelines
Outcomes
The Attorney General's reference was dismissed.
The Court of Appeal found that the judge was entitled to find that it was unjust to impose the minimum three-year term for burglary, given Tomney's progress in addressing his drug addiction and the prospect of rehabilitation. The court considered that a suspended sentence better protected the public in this case.
Leave to refer the sentence was granted.
The judge's explanation for finding it unjust to impose the minimum term was deemed insufficient.