CONVICTED child killer Brendon Toohey will return to court next month seeking to have a separate conviction for the sexual assault of an 11-month-old baby overturned.
Toohey, 40, was originally charged with the murder of an infant died at Blayney Hospital in April 2014 before being convicted of her manslaughter and jailed for seven and a half years.
He was eligible for release on parole on October 8 last year.
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Toohey has always maintained that the baby, who cannot be named for legal reasons, suffered critical injuries when she fell from a trampoline and hit her head on the lid of a concrete septic tank as he was taking clothes off the washing line at a Mandurama home, about 30 kilometres south-west of Blayney.
Toohey arrived at the emergency department at Blayney Hospital with the child at 11am on April 2, 2014 and raised the alarm.
Nursing staff, who immediately identified the child as critically ill, took the baby into a treatment room where, along with other medical staff, they performed extensive CPR.
Treatment continued long enough for the child's mother to be brought to the hospital before the baby was declared deceased at 12.40pm.
Detectives from the State Crime Command's Homicide Squad and Chifley Local Area command formed Strike Force Zarebski to investigate the incident, and Toohey was subsequently charged.
In July 2017, Toohey was convicted of the infant's manslaughter following a two-week trial in the Supreme Court at Bathurst Court House.
In a separate judge-alone trial in 2019 before Judge J Bennett in the Parramatta District Court, Toohey was convicted on a charge of sexual intercourse with a person under 10, under authority.
He was jailed for four years and six months (three years' non parole).
The sentence was backdated to March 9, 2016, making Toohey eligible for parole the day after he was sentenced.
The DPP appealed the sexual assault sentence on the grounds it was "manifestly inadequate", arguing the sentencing judge erred in his assessment of the objective seriousness of the offence and in his application of the principle of totality.
The matter went before the Court of Criminal Appeal in Sydney in July last year before justices Gleeson, Button and Lonergan.
They set aside Judge Bennett's sentence and re-sentenced Toohey to six years and nine months' jail on the sexual assault charge, with non-parole of four years and six months.
A spokesperson confirmed Toohey's appeal against the sexual assault conviction was listed for hearing on March 18 in the Court of Criminal Appeal, Sydney.
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