R v Fuller

The sentence hearing

1. The sentence hearing occurred on 14 February 2025.

The victim impact statements

1. Mr Hunt gave a victim impact statement, in which he said that he was so traumatised by the intimidation offence that, ultimately, he had no choice but to move from South West Rocks, where he had lived happily for the previous 10 years and had hoped to spend the rest of his life.
2. Mr Tozer's wife read out her victim impact statement, in which she said that she also had to leave South West Rocks where she had spent most of her life and which she and her husband had regarded as their "paradise". Victim impact statements by Mr Tozer's daughters, Naomi and Elise, and his stepson Ben Cunningham, were read. Their statements conveyed the depth of their love for Mr Tozer and the devastation that the offence had brought upon their lives.
3. On behalf of the community, the Court extends its sympathy to Mr Hunt, and to Mr Tozer's family, its condolences. May I say to Mr Tozer's family, that it is to be hoped that you derive some comfort from the knowledge that as Mr Tozer lay unconscious and dying, he received tender care from the four people who came to his aid from across the road and from other neighbours, as can be heard on the recording of the lengthy 000 call made at that time and from their evidence. Their efforts were commendable.
4. Pursuant to s 30E(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), I find it to be appropriate to take into account on the sentencing of the offender the victim impact statements of Mr Tozer's family, as an aspect of the harm done to the South West Rocks community in particular, and the broader community as a whole.

THE OFFENDER'S MENTAL CONDITION

1. The evidence of the offender's parents regarding his childhood exposure to various negative experiences is relevant to expert forensic opinions as to the offender's mental health as an adult and to an assessment of his moral culpability.

The offender's parents' evidence

1. The offender's parents gave uncontested evidence in the trial of the offender's exposure to violence and neglect in his childhood and adolescence; its relevance in the trial being, the defence submitted, that the offender was highly sensitised to violence and threats of violence towards and around his mother, which explained how he may have perceived the incident with Mr Tozer to be more threatening to his and her safety than it actually was. That scenario depended upon the Court being satisfied on the balance of probabilities that the offender thought Mr Tozer was holding a weapon, or something that he perceived to be a weapon, when Mr Tozer alighted from his car. That submission was rejected: see [308] and [405] of the verdict judgment.
2. The evidence of the offender's parents is summarised at [268]-[299] of the verdict judgment. I accept that the offender was exposed to domestic violence during his childhood and that his parents were poor role models for his moral development, consequent to their on-going use of prohibited drugs and alcohol and their violent behaviour towards each other, either in the offender's presence or at least in his hearing, and their neglect. Although his parents separated when the offender was aged 7, his father continued to visit, provoking further violence. The offender's father breached Apprehended Domestic Violence Orders (ADVOs) on multiple occasions, often with the connivance of his mother, leading to more incidents of violence and other abuse. A notable incident, which was recorded in a police incident report, is canvassed at [273] and [274] of the verdict judgment: when the offender was aged 9, he rang police from a public phone booth to report that his parents were arguing and that his father had threatened his mother with physical violence.
3. There were also multiple instances of neglect by the offender's mother when the offender and his siblings were in her exclusive care, and repeated incidents of the offender witnessing episodes of physical and psychological violence and intoxication involving his mother and various of her subsequent partners. The offender's mother gave evidence of an attempted hanging by the offender when he was aged 14. It occurred while she was having a violent argument with a partner. She intervened, the offender ran off and after finding him, she and the offender's father took him to hospital for an examination.
4. The offender lived with his mother and two younger brothers in the South West Rocks area, apart from a period of about 12 months when he was aged about 15, when he resided with his father in South Kempsey. The offender's father gave evidence of an occasion when he was assaulted by three men with machetes. He received cutting wounds to his head, torso and legs. The offender visited him in hospital and viewed the wounds before they were sutured.

Forensic evidence of the offender's mental health

1. The defence tendered, without objection, reports by a forensic psychiatrist, Dr Gerald Chew, and by a clinical psychiatrist, Dr Joanne Holdaway. The Crown tendered, without objection, excerpts of three reports by Dr Kerri Eagle, a forensic psychiatrist.

A report of Dr Gerald Chew, forensic psychiatrist

1. In a report dated 22 November 2024, Dr Gerald Chew referred to a personal history from the offender that included: episodes of violence at home; that state care agencies were involved; a sexual assault by a Sunday School teacher when he was aged "under 10"; and an alleged sexual assault by a high school teacher when he was "aged 14-15", following which the offender deliberately cut himself and attempted suicide by hanging. The offender struggled with his Aboriginality; he did not fit in with the Aboriginal community due to his light skin, but neither did he fit in with the non-Aboriginal community. As an adult, in the context of relationship difficulties, the offender took a paracetamol overdose. He gave a long history of paranoid ideation and transient auditory hallucinations, in the form of voices, typically at times of stress. Dr Chew noted: "[The offender] described difficulties at times managing his emotions with anger outbursts over 'nothing'. He described a long history of substance abuse to manage his emotions."
2. The offender said that at the age of 15, he commenced drinking alcohol and using prohibited drugs. He used heroin and methylamphetamine until "not long after his daughter was born", which I note was in July 2018. He and her mother broke up three months after the birth.
3. Dr Chew diagnosed the offender as having a substance use disorder, likely arising from his "traumatic experiences". Dr Chew noted the offender had been diagnosed with epilepsy, although he has not had a seizure since about the time of the initial diagnosis.
4. Dr Chew found that the offender qualified for a diagnosis of Borderline Personality Disorder, utilising the American diagnostic tool of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (the DSM-5). He also qualified for a diagnosis of a Complex Post-Traumatic Stress Disorder (complex PTSD), utilising the UN World Health Organisation's International Classification of Diseases 11th Revision (ICD-11). He stated: "[The offender] presents with a pervasive pattern of instability of affect and marked impulsivity beginning in his teenage years and characterised by affective instability, impulsivity, suicidality, anger problems and transient stress related psychotic symptoms. This is in the context of significant trauma experienced particularly childhood sexual abuse. He describes re-experiencing and avoidance phenomena to past trauma."
5. As to any relationship between the offender's mental condition and the offences, Dr Chew stated: "At the time of the offending [the offender] was suffering from the above psychiatric diagnoses. At the time of the offending behaviour his mental health impairment likely meant that he was more impulsive (less likely to be able to control himself) and less likely to be able to reason about the nature and consequences of his actions than someone without this mental health impairment. I note that Borderline Personality Disorder often presents with impulsivity and stress-related paranoia which both appear to have been present at the time of the alleged offending impacting his thinking and behaviour."

Reports of Dr Joanne Holdaway, clinical psychiatrist

1. The offender also relies upon two medico-legal reports dated 17 October 2022 and 17 September 2024, by Dr Joanne Holdaway, who is a consultant and clinical psychiatrist. The earlier report includes a history taken from the offender of an allegation that a high school teacher seriously sexually assaulted him when he was aged 14, which I note would be in about 2007 or 2008. The reports were prepared for the purpose of civil proceedings commenced by the offender seeking damages for the psychological injury he suffered from that alleged assault.
2. The offender gave a history of his behaviour changing markedly after the sexual assault: "He was easily angered, would get angry with teachers and verbally abuse them". His behaviour also deteriorated at home, which included self-harm and the hanging attempt when he was aged 14.
3. The offender started using drugs and alcohol, which he found provided some respite from the thoughts in his head concerning the sexual assault. Prior to his imprisonment, he drank alcohol daily and sometimes two bottles of port a day on weekends. As to drugs, he would use an ounce a day of cannabis and take buprenorphine "when it was available". In prison, he accessed buprenorphine unlawfully and took it "almost daily".
4. Dr Holdaway diagnosed the offender as having a complex PTSD and a Borderline Personality Disorder according to their respective classification systems, as well as a polysubstance use disorder involving cannabis, opiates and methamphetamine. She did not report the factual basis for including methamphetamine in that disorder. She was of the opinion that the offender developed a PTSD following the sexual assault which developed into a complex PTSD.
5. It appears from the body of Dr Holdaway's first report that she had access to comprehensive records of the offender's schooling and medical history. As to the relative contribution of the offender's sexual assault to the deterioration of his mental health, she stated: "[The offender] was exposed to domestic violence between his parents and also witness to violence towards his mother from other partners, as well as violence within the context of the extended adult family group. However, according to report and also corroborated by his primary school records, he appears to have been a relatively cheerful child, applying himself well to his school work, and actively engaged in recreational activities outside his home. Therefore, I do not consider him to have suffered from any pre-existing psychological disorder before the sexual abuse incident occurred."
6. The offender's account to Dr Holdaway of the sexual assault reads credibly. However, an untested and uncorroborated account by the offender is to be approached with considerable caution. The offender has not reported the alleged sexual assault offence to police, even though he recalls the name of the teacher and other information that would assist in the teacher's identification. There may be sound reasons as to why a victim of child sexual assault would not want to endure the stress of being a witness for the prosecution in criminal proceedings against their perpetrator, but the fact remains that there is no other material before the Court that corroborates this allegation.
7. I observe that, according to Justice Health psychology notes concerning consultations with the offender two days after entering prison on remand, he explained his motivation for trying to hang himself when aged about 15 differently, as being because of "traumatic memories of his father being abused by police". In October 2021, during a consultation he was recorded as saying that he attempted to hang himself twice, when he was aged 14 and 18. However, Dr Holdaway's report mentions only one suicide by hanging attempt. The reports also do not mention the allegation that the offender made to Dr Chew of an earlier sexual assault when he was under 10 years of age.
8. As to other matters, Dr Holdaway stated that the seizures that led to the diagnosis of epilepsy were in 2015 and that he had not had any more seizures for two or three years. The offender told her that his neurologist was of the view that they might have been drug-indued seizures.

Excerpts of reports by Dr Kerri Eagle, forensic psychiatrist

1. The Crown challenges the diagnoses made by Drs Chew and Holdaway of a complex PTSD and a Borderline Personality Disorder. At the sentence hearing, it tendered excerpts of three reports by Dr Kerri Eagle, forensic psychiatrist, dated 24 January 2023, 7 May 2024 and 17 September 2024. In her two earlier reports, Dr Eagle stated that, in her opinion, the offender's history did not include the symptomology she would expect from those diagnoses. Rather, she was of the opinion that the offender had a personality disorder and displayed borderline and antisocial (maladaptive) personality traits. In her first report, she stated, at para 51: "[The offender's] personality traits and psychological vulnerabilities have arisen in the context of his disrupted, dysfunctional and traumatic childhood and adolescence during which he has reportedly been exposed to physical, sexual and psychological abuse. Despite this, he appears to have functioned reasonably well for periods of time including sustaining employment, and working towards an apprenticeship. He had not been incarcerated prior to this offence, although there appears to have been an escalation in aggressive behaviour over the last few years in the context of a relationship breakdown. It is not apparent whether there is evidence of conduct disorder prior to age 15. He appears to have a stable relationship with his mother."
2. Dr Eagle agreed that the offender qualified for a diagnosis of a substance use disorder and a seizure disorder, although the latter may have been the result of prescription and illicit substances lowering his seizure threshold.
3. In her third report, Dr Eagle referred to the reports of Drs Chew and Holdaway and found little substantive difference in their three respective opinions, stating at para 18 of her report: "Dr Holdaway's diagnostic formulation is not significantly different from mine and is essentially the same as Dr Chews. Dr Chew and Dr Holdaway maintain that [the offender] has a complex PTSD (also fulfilling criteria for a borderline personality disorder). I similarly noted [the offender] presented with psychological vulnerabilities related to his traumatic experiences but I was not satisfied that he continued to demonstrate signs of re-experiencing phenomena (or intrusion symptoms) related to traumatic experiences that were of clinical significance such as to satisfy the diagnosis of complex PTSD. I reviewed [the offender] on 6 January 2023 and his presentation may have changed/improved since Dr Chew and Dr Holdaway reviewed [him]. He had been taken off all his psychotropic medications except his anticonvulsant medication, sodium valproate. He reported a bit of paranoia in the context of the gaol and did not hear voices much anymore (despite not being on any antipsychotic). He did not endorse other symptoms suggestive of recurrent intrusion or re-experiencing symptoms directly related to the traumatic events he had been exposed to and the clinical records did not reflect reports of those symptoms. He may have experienced those symptoms in the past and apparently he did report them to Dr Chew and Dr Holdaway. Self report can be unreliable in the context of criminal and/or civil proceedings, in the absence of other objective information. Ultimately I am of the view that there is little of significant difference in Drs Chew, Holdaway and my assessment and formulation of [the offender's] clinical presentation."

Conclusion

1. I accept the coinciding opinions of Drs Chew and Holdaway as to the offender's mental health diagnoses which, I appreciate, involves an acceptance of the most relevant aspects of the histories on which those diagnoses are based, despite the sexual assault allegation being untested. In so finding, I take into account Dr Eagle's observation that she did not discern a significant difference in her diagnoses from those made by Drs Chew and Holdaway.
2. Accordingly, I am satisfied that as a consequence of the offender's significant childhood trauma he qualifies for diagnoses of Borderline Personality Disorder, a complex PTSD and a substance/polysubstance abuse disorder, according to their respective classification systems.

THE OBJECTIVE SERIOUSNESS OF THE OFFENCES

1. The sentencing exercise requires an identification of the facts, matters and circumstances which bear on an assessment of objective seriousness. There is no requirement for the objective seriousness of the offences to be ranked on a scale: Sharma v R [2017] NSWCCA 85 per R A Hulme J (Beazley P and Walton J agreeing) at [63] citing Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29].

The intimidation offence

1. There are two aspects of the intimidating behaviour: the tailgating of Mr Hunt for approximately 20 minutes from the intersection where the offender had pulled over to the South West Rocks Police Station, and the threat that the offender made to Mr Hunt outside the police station. It is apparent from the offender's retrieval of his Rottweiler, his stated intention captured on CCTV audio and his attempts to locate Mr Hunt, that he meant to carry out that threat if he could locate Mr Hunt. The relevance of that evidence is that it eliminates a reasonable possibility that, as was submitted by the offender, the oral part of the intimidation offence may have been an empty threat.
2. Both aspects of the intimidating behaviour were sustained and serious. The offender has not provided an explanation for his behaviour and none is obvious from the evidence. Pulling over in the intersection so as to block a road and then urinating on the driver's side of his car, rather than the passenger's side, is odd behaviour. Clearly, he would have attracted less interest from passing vehicles if he had pulled over to the side of the road and urinated out of sight of any passing traffic.
3. I find this to be a reasonably serious example of an offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act.

The offence of murder

1. Counsel agreed that the objective seriousness of the murder offence fell in the mid-range, although the Crown submitted it was open to the Court finding that it was somewhat higher. In making these submissions, both counsel readily acknowledged that the Court is not obliged to make a finding in terms of a presumptive scale of objective seriousness.

The offender's intent

1. There is direct evidence of the offender's intent to cause grievous bodily harm. The evidence as to whether it evolved into an intent to kill, is circumstantial in nature. The duration and ferocity of the one-sided assault is circumstantial evidence of an intention by the offender to kill Mr Tozer, since it involved repeated impacts on Mr Tozer's head and it continued well after Mr Tozer was unconscious. The offender's speech over that time, which was captured on the CCTV audio, is at first suggestive of an intention to cause really serious bodily harm, such as him saying twice to Mr Tozer, "I'll knock you clean the fuck out". However, immediately before Mr Tozer is heard to scream out for help, the offender said, "I'll knock your head off, cunt. What we want". At about the time that the offender is last heard to make any sort of noise, the offender said, "kick box … cunt. I'll jump on your head". That suggests that the offender commenced the assault with the intention of causing really serious bodily harm, but at about 6:42.26pm, having regard to the table at [60] of the verdict judgment, his intention escalated to one of killing Mr Tozer.
2. I am satisfied beyond reasonable doubt that, at the time that the offender delivered the fatal blows, his intent was to kill Mr Tozer. If I am wrong in so finding, the offending behaviour was so egregious in any event that the degree of mitigation that usually flows from a finding of the lesser intent for murder (to cause grievous bodily harm) would not follow in this case: R v Hillsley (2006) 164 A Crim R 252; [2006] NSWCCA 312 at [16], [17]; R v Boon [2019] NSWSC 813 at [50].

Whether there was premeditation

1. An aspect of determining the objective seriousness of the offence is the issue of premeditation. The offence was spontaneous in the sense that the offender did not form an intent to assault Mr Tozer until Mr Tozer pulled up at the bottom of the offender's driveway and walked towards him, and did not form an intent to kill him until a few minutes after that. However, the evidence also establishes beyond reasonable doubt that the offender had been in a physically aggressive mood for at least half an hour before the offence, and in that period he had an intent to cause really serious bodily harm to another stranger, Mr Hunt, as captured by the CCTV audio. Mr Tozer happened to be the next stranger to cross the offender's path and to unwittingly provide a fresh target for the offender's rage. In that sense, the offence was not entirely spontaneous.

Whether there was a degree of provocation

1. The offender submits that the Court would be satisfied, on the balance of probabilities, that the offender's assault of Mr Tozer was, to a degree, provoked by Mr Tozer's behaviour in giving chase to him. A related submission was that the offender was, accordingly, scared when confronted by Mr Tozer, so that these mitigatory factors contributed to the offender's decision to assault Mr Tozer.
2. In support of those submissions, the offender relies upon: the speed of the cars during the chase; the sound of Mr Tozer's performance car which, the Court is invited to conclude, would have been a frightening experience for the offender; the fact that the offender switched off his lights during the chase in an attempt to evade Mr Tozer, giving rise to an inference that he was fearful; that Mr Tozer parked across the front of the offender's driveway so that the offender had a sense of being trapped; and that Mr Tozer revved the engine before getting out of his car. As well, during the assault, the offender can be heard on the CCTV audio repeatedly claiming that he was "scared for my safety" and uttering similar expressions of fear. After the assault, he claimed to others that he had been scared at the time he assaulted Mr Tozer, as a result of Mr Tozer's unexplained pursuit of him and his observation that Mr Tozer was armed.
3. However, I note that the offender was aware at the time of the impact that there had been a collision and thus he knew that he was legally required to pull over. Instead, he kept driving, which would have been obvious to him as the explanation for the chase. He could have brought it to an end at any time by pulling over. The offender's motive for switching off his lights and evading Mr Tozer is also explicable by his determination to avoid having to deal with the driver of the car he had just collided with.
4. When the offender arrived home, he made no effort to avoid Mr Tozer. He did not lock himself inside his house, run off, knock on a neighbour's door or call out for help, as one might expect if he was genuinely fearful. Since there is no suggestion arising from the offender's behaviour that he wanted to avoid a confrontation with Mr Tozer once he arrived home, it is of no consequence that Mr Tozer had parked across the offender's drive. Mr Tozer tried to leave the offender's property when the offender told him to and, as he tried to get into his car, was pulled away by the offender and fatally assaulted.
5. As to the offender stating that he was afraid during the assault, I repeat my finding in the verdict judgment in that regard: "397 At 6:47:15, when Mr Tozer had been silent, most likely unconscious, for about two and a half minutes, the accused said, 'You threatened me. I felt scared. You were on my private property, I defended myself. That's my right'. The accused is not suggesting by those words he was scared at that time, but rather that he had been scared earlier in the confrontation. 398 When the accused is heard on the CCTV audio to say that he is 'scared' and 'scared for my safety', his tone is inconsistent with the ordinary meaning of those words; indeed, it conveys anger and aggression rather than fear and concern. There was no objective indication that he was in fact scared; rather, it is the opposite. Although the accused is heard to say that he had felt threatened, there is no evidence of acts, words or sounds by Mr Tozer that could reasonably be construed as threatening to him, or behaviour by the accused that could be construed as responding to threats, such as calling for help or leaving the scene. 399 The tone suggests the words were said by way of self-justification, justifying (bizarrely) to Mr Tozer why he was attacking him, and for the benefit of anyone other than Mr Tozer who may have been in earshot."
6. I also note my finding at [423] of the verdict judgment.
7. The offender's post-offence claims to police and others, that he attacked Mr Tozer because he was afraid, hinged upon his claim at the time that Mr Tozer was armed with a knife (in a later version he was holding a screwdriver or a pen), which was a lie.
8. I reject the submission that the offender's assault was partly provoked by Mr Tozer's actions and that the offender's motive for the assault was, in part, because he was scared of Mr Tozer.

The callous, sustained and brazen nature of the assault

1. In my view, the offence of murder was rendered more serious by the callous nature of the assault, its duration and its brazenness: the offender attacked Mr Tozer on a suburban residential street with cars occasionally driving past or close by (in Simpson Street) in the early hours of the evening. At times after Mr Tozer had lost consciousness, while continuing to assault him, the offender made mocking and taunting comments, in the false belief that no-one could hear what he was saying or doing. For example, the offender can be heard saying, "you pulled out on my car. Who's on the ground now" and "Right now, you're messing with a two times New South Wales lightweight boxing champ": the offender was enjoying what he thought to be his private moment of physical dominance over his unconscious victim.
2. That indifference to Mr Tozer's plight also manifested in the offender's failure to join in offering any meaningful assistance to Mr Tozer as his neighbours applied first aid and his callous remarks to others as to Mr Tozer's injuries, such as, "Fuck him. I seen worse".

Whether the offender's mental condition is relevant to the objective seriousness of the murder offence

1. The offender submits that his diagnosis of a Borderline Personality Disorder/a complex PTSD has such a nexus to the offence that it is relevant to the determination of its objective seriousness.
2. Drs Chew and Holdaway noted that characteristics of a Borderline Personality Disorder include anger. Dr Holdaway added that it included "inappropriate intense anger" and impulsivity, which Dr Chew stated meant the offender would have been less able to control himself.
3. As noted, the Court has no explanation from the offender as to his motivation for the intimidation offence, which is also relevant to an understanding of his motivation for the murder offence, in view of their temporal proximity and similarities in terms of an intent to cause a head injury by kicking or stomping. The Court has rejected his explanation at trial for the murder offence. I have earlier referred to some aspects of the offender's apparent thinking during the assault that may be gleaned from his speech that is audible on the CCTV audio.
4. I am satisfied on the balance of probabilities that the offender's diagnosis of a Borderline Personality Disorder/a complex PTSD, in particular, his consequent propensity to anger and impulsivity, is relevant to an understanding of the offending behaviour, but that it does not explain the offences. The connection is not one of causation. It is apparent from the CCTV audio that the offender exercised a level of control over his attack and quite consciously and calculatedly determined to escalate the level of violence during the attack. Having regard to the factors to be taken into account when determining whether an offender's mental condition may affect an assessment of the objective seriousness of the offending behaviour, as identified in DS v The Queen (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [96], it is not relevant to a determination of objective seriousness.

Conclusion

1. Having regard to these factual findings that bear upon the question of the objective seriousness of the murder offence, I find it to be a particularly egregious example of this offence. To be clear, it is above mid-range.

Statutory mitigating factors

1. Having regard to s 21A(3)(b) of the Sentencing Procedure Act, I take into account that the offences were not part of a planned or organised activity.

The question of intoxication: s 21A(5AA) of the Sentencing Procedure Act

1. Neither party submits that the offender was intoxicated, whether by drugs or alcohol, at the time of the offences. Mr Mills stated that during the afternoon he thought the offender had one can of "Jim Beam". He could not recall if the offender smoked cannabis during the afternoon, but stated that he was "happy and his usual self. He did not appear to be affected by alcohol or drugs at any time whilst we were hanging out", [1] although I note that Dr Eagle reported that the offender informed Justice Health staff on his reception into prison that he had smoked cannabis and consumed alcohol.
2. Mr Young, who was one of those who attended upon Mr Tozer, said of the offender at that time, "you could smell alcohol for starters. He wasn't blind by any stretch of the imagination, but he - you could tell he'd had a drink". [2] Shortly after 9:34pm when the offender was placed in the dock at Kempsey Police Station, Constable Adnum stated, "I could smell intoxicating liquor while speaking with [the offender] in the confined space of the dock". [3]
3. There is an unexplained period of time between when, according to Mr Mills, the offender departed his residence and 5:54pm, which was when the offender's vehicle was first captured on CCTV travelling to South West Rocks, only 8km from West Kempsey. I do not draw any inference as to what might have occurred in that period.
4. Consistently with the parties' submissions, I find that the evidence of the offender's ingestion of cannabis and alcohol does not extend to evidence of him being intoxicated at the times of the offences.

The issue of remorse

1. The offender tendered a letter in which he expressed sorrow to Mr Tozer's family and friends for their loss, as well as regret, remorse and shame for his actions. The degree of criminal responsibility for the murder offence that the offender acknowledged in his letter does not go beyond his position at trial of excessive self-defence; that is, he believed at the time that the force he used was necessary to defend himself, but accepted that it exceeded what was objectively reasonable in the circumstances as he perceived them: s 421(1) of the Crimes Act. The offender did not mention the intimidation offence in his letter of apology.
2. The offender has not given evidence in either his trial or at his sentence hearing, so his expression of remorse for the murder offence is untested. That is of some moment in this case because the offender has repeatedly made claims about what occurred before and during the offence that have transpired to be lies. As noted in the verdict judgment at [369]-[374], this includes whether he knew at the time his car had collided with Mr Tozer's car; the route they took in the chase and how and where he and Mr Tozer first crossed paths that night; at [392], [395]-[401] as to the offender's claim that Mr Tozer was armed with a knife when he alighted from his car, chased him and threatened to kill him while he (the offender) was "screaming out for help"; and at [121], [148], [238] and [239] as to how many impacts he delivered to Mr Tozer during the assault, from his initial claim to police and others of two punches and one head kick to after he heard the CCTV audio in August 2023, saying he could not recall.
3. The offender lied to police and others that he saw Mr Tozer alight from his car armed with a knife: see [395-401] of the verdict judgment. Indeed, as recently as 11 August 2023, in a prison call with his mother, the offender maintained that Mr Tozer had "come at me with a weapon" so that he "was scared that he was gunna kill me".
4. In view of these lies, I cannot accept the untested contents of the letter as a genuine expression of remorse by the offender. There is no other evidence upon which I could make such a finding.

The offender's background

1. The offender identifies as an Aboriginal man through his father's heritage. His mother, in an affidavit read at the sentence hearing, states that at the time of his arrest, the offender was working part time. I note that he has one child, aged six, to whom he is seeking access in the Family Court. He is not presently in a relationship. The offender gave a history to a forensic expert to the effect that after leaving school he worked as a labourer but found it difficult to hold down jobs. He moved to the Gold Coast where he completed three years of an apprenticeship to do with working on air conditioning units. He then returned to the Kempsey area, apparently in his early twenties, partly because his mother had suffered an aneurism.

The offender's moral culpability

1. I am satisfied on the basis of the evidence of the offender's parents that the offender suffered a childhood of repeated exposure to his parents and his mother's subsequent male partners engaging in physical acts of violence as well as verbal and psychological abuse, repeatedly being under the effects of excessive alcohol and drug intoxication. I am also satisfied that the offender was subject to parental neglect during his childhood. Although Drs Holdaway and Eagle did not discern any impact of the offender's childhood deprivation in his school reports prior to the age of 15, I am satisfied that this exposure in his formative years was compounded by the sexual assault and, in combination, significantly impaired his moral development, to which I will give full weight, in accordance with Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44].
2. As noted, although I am not satisfied that the offender's Borderline Personality Disorder/complex PTSD caused the offending behaviour, I am satisfied that it contributed in a material way to both offences, which is also a factor that reduces his moral culpability: Director of Public Prosecutions (DPP)(Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. I note that there is an overlap between those sentencing principles.

General deterrence

1. The weight to be attributed to general deterrence is reduced, primarily because of the offender's mental health diagnosis, although its impact on the final sentence is to be weighed with the various other sentencing considerations. I do not consider it appropriate to reduce the weight to be attributed to specific deterrence in view of my findings as to the offender's prospects of rehabilitation, which are considered later in this judgment.

The offender's criminal record

1. The offender was aged 27 at the time of the offences and is now aged 31. He has a criminal record in Queensland for four drug-related offences committed when he was aged 20 for which he was fined and, for one offence, received a good behaviour bond, with no convictions being recorded.
2. He has six offences in New South Wales, committed between the ages of 23 and 26. Five were in a domestic violence context: an assault occasioning actual bodily harm when he was aged 23, for which he received a bond; destroying or damaging property when he was aged 25, for which he received a fine; a further destroying or damaging property offence and a common assault, for which he received a fine and a 9 month Community Correction Order (CCO) respectively; and contravening an ADVO between August 2019 and January 2020 when he was aged 25 and 26, for which he received another 9 month CCO. That latter CCO was imposed with a condition that the offender "continue with mental health counselling and treatment with Dr Taylor and Mark Smith or delegates for as long as they deem". His most recent prior offence was a common assault committed when he was aged 26, for which he was fined.
3. The offender's criminal record is consistent with an observation made by Dr Eagle in her first report that there appears to have been an escalation in the offender's aggressive behaviour over the last few years before his incarceration. Section 21A(2) of the Sentencing Procedure Act provides that the aggravating factors to be taken into account in determining the appropriate sentence include: "(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences)"
4. A "serious personal violence offence" is defined at s 21A(6) as follows: "serious personal violence offence means a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) that is punishable by imprisonment for life or for a term of 5 years or more."
5. The offender's prior convictions for assault occasioning actual bodily harm and destroying or damaging property satisfy the definition of a "serious personal violence offence", although I also take into account that they fall at the bottom of that qualifying sentence range.

The offender's remand

1. As noted at [170] of the verdict judgment, the offender injured his right hand in the knuckle area and had a broken toe on his right foot as a result of him repeatedly punching and kicking Mr Tozer. In another letter that was tendered by the defence, the offender stated that his right hand became infected, requiring an admission to Long Bay Hospital for "four to six weeks", during which time he had minimal contact with his family because of restrictions resulting from the Covid-19 pandemic. When he was returned to the general prison population, there were periodic lockdowns and deprivations, including access to showers and visits, for the same reason. The lockdowns continued to the time of writing the letter. The letter is undated, but I presume it was written shortly before the sentence hearing.
2. An affidavit by the offender's instructing solicitor has attached records of Corrective Services NSW for lockdowns where he is presently accommodated. The records establish that between 4 October 2024 and 11 December 2024, there were 11 lockdowns all due to staff shortages. Three were all day, and the balance were for a number of hours, most being for seven and a half hours.
3. Exhibited before the Court as well were a selection of consultation notes by prison psychologists, the earliest being 11 October 2021. There are five in all that were generated in 2021 and another five in 2024. In a consultation dated 26 October 2021, the psychologist wrote: "[The offender] stated that he wanted to go into segregation and that if he was not able to do so in the next few weeks he would hurt someone else. When asked what he would do he stated he would stab or hit others if needed. He indicated that if he went to segregation and was let back into the main not long after he would hurt others just to get back." (emphasis added)
4. The offender was transferred to a segregation unit (a Special Management Unit: SMU).
5. The five consultation notes that were generated in 2024, the earliest being 17 May 2024, suggest that the offender's mental health is more stable and that he did not harbour thoughts of harming himself or others, although I note that on 3 March 2024, he was disciplined for possessing an offensive weapon.
6. While on remand, the offender has accrued 14 disciplinary matters, including six that are related to the use of drugs. The most recent drug-related matter, possessing a drug implement, was in February 2024. Dr Chew noted that the offender told him he had not used illicit substances in prison since receiving Buvidal depo monthly injections "well over a year ago".
7. The offender has tendered certificates of his completion of various programs while on remand, including "anger management", "cannabis awareness", "alcohol awareness", "thinking skills" and "education and employment". A letter dated 24 July 2023 from the Governor of Parklea Correctional Centre attests that the offender completed a voluntary program that seeks to address drug issues.

Prospects of rehabilitation

1. The offender has taken some early steps to address his criminogenic issues through the remand courses and his recent cessation of the use of prohibited drugs, with the assistance of Buvidal depo injections. In her 2022 report, Dr Holdaway was of the opinion that the offender requires ongoing treatment by a psychiatrist "who is experienced in the treatment of post-traumatic stress disorder and its manifestations as well as serious mental illness including schizophrenia", and a psychologist who is experienced in the treatment of Complex PTSD, to engage in a long term therapeutic relationship with him, as well as drug and alcohol rehabilitation treatment.
2. In her 2022 report, her prognosis of the offender's mental health consequences of his sexual assault, that is, his Borderline Personality Disorder/a complex PTSD, was "guarded". She elaborated: "At age 29, he now has been charged with a serious matter which may lead to extended incarceration. He has had under-treated complex post-traumatic stress disorder for at least a decade. His injuries have also led him to mistrust those adults or institutions to which he might have otherwise turned for help, including his parents, the police, and the health system. His symptoms have also led to mistrust for adults who might provide him with employment and shelter. [The offender] has spent more than a decade using substances to dull his mind and to avoid experiencing the symptoms related to his trauma, or processing the repercussions of his trauma on his life. This in addition to unresolved complex PTSD symptoms has led him to fail within the school system, and to be largely unable to function well in normal adult roles (work, fatherhood, partner). Although he did begin some talking therapy around three years ago in the context of his desire to be an active father, he continued using substances over the period, which would have to some degree made the treatment less than optimally effective. He has now additionally attracted a differential diagnosis of schizophrenia, which whether true or not is likely to have some longer-term repercussions for his future, the degree to which he is trusted in the family court to have custody for his child, and his treatment within the criminal justice and forensic systems. Additionally, [the offender] is not currently receiving mental health care or psychiatric medications that might otherwise help his symptoms, and has come to mistrust the reliability of his care, which is a further poor prognostic feature. On the positive side, however, [the offender] has a strong Christian faith, and prior to his incarceration was beginning to engage in some volunteer activities within the context of the church. He also has a strong desire to have contact with his daughter, and reports positive mental health benefits from that. Should he be able to continue with these two protective factors, his prognosis would be somewhat improved."
3. The question that Dr Holdaway addressed was the offender's prognosis in respect of his mental condition, which is an issue that is relevant to the question of the offender's rehabilitation, even though its material connection to the offending behaviour was not one of causation: R v Engert (1995) 84 A Crim R 67 at 71. Dr Holdaway was not privy to the evidence concerning the two offences for which the offender is to be sentenced. The question for this Court is broader, namely, the offender's prospects of rehabilitation of which his mental condition is a part; in particular, his prospects of no longer posing a serious danger to the safety of the community.
4. I regard the offender as having poor prospects of rehabilitation. In making that finding, I take into account: Dr Holdaway's prognosis of the offender's mental condition being "guarded"; his aberrant behaviour and limited progress on remand, including the manipulative threat to stab or otherwise assault fellow prisoners in October 2021 to obtain segregation and his possession of a prohibited weapon 12 months ago; the absence of an explanation for his volent behaviour towards both victims, who were strangers to him; the absence of evidence of any insight into his offending behaviour and the absence of evidence of remorse for either offence.
5. However, it would be premature to find that the offender is incapable of addressing his mental health issues and ultimately leading a relatively law-abiding life. His primary protective factor is the continuing support of his siblings and his parents. There are opportunities for him to continue the process of addressing his issues which are symptomatic of his primary diagnoses, such as his prohibited drug use and anger management, through available prison treatment courses whilst serving the non-parole period of his sentence, as he has started to do on remand. I take into account that he voluntarily participated in and completed his remand courses and that he has not had a disciplinary infraction of any type in 12 months.
6. I recommend that a copy of Dr Holdaway's report, dated 17 October 2022, in particular, her recommendations for the offender's treatment, be provided by the offender's legal representatives to Justice Health.

Specific deterrence and the protection of the community

1. Giving full weight to the offender's childhood deprivation and the contribution of his mental health diagnoses to the commission of the offences is not necessarily an exclusively mitigatory exercise. In DPP (Cth) v De La Rosa, McLellan CJ at CL noted at [177] that the mental condition that reduces moral culpability may render the offender more of a danger to the community, so that considerations of specific deterrence may result in an increased sentence. Similarly, in Bugmy v The Queen at [44], the majority of the High Court said: "An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."
2. This is such a case, in view of my finding that the offender has poor prospects of rehabilitation.

Special circumstances

1. I find that there are special circumstances warranting a modest adjustment of the ratio of the non-parole period of the sentence of imprisonment to be imposed. This includes the adverse conditions of incarceration that applied to the offender while he was on remand, including consequent to the Covid-19 pandemic restrictions and more recent lock-down issues as well as the difficulties that the offender may experience in prison due to his mental health conditions. The variation is not made on the basis of the offender's need for supervision to ensure that he accesses therapy for his mental health issues; the period of parole would have been of a sufficient length for that purpose in any event.

Some other matters taken into account on sentence

1. Having regard to s 5(1) of the Sentencing Procedure Act, I am satisfied that no penalty but imprisonment is appropriate for each offence. The Crown has not sought and I will not impose a life sentence for the murder offence. I have regard to the maximum determinate sentences for the offences and the purposes for which a sentence is imposed, as identified in s 3A of the Sentencing Procedure Act.
2. This will be the offender's first sentence of imprisonment. He has been on remand exclusively in respect of these matters since his arrest on the evening of the offences, which is a period of 3 years 7 months and 1 week.
3. The offender will receive a discount for his plea of guilty to the intimidation offence of 5 per cent of what the sentence for that offence would otherwise have been: s 25D(2)(c) of the Sentencing Procedure Act. I decline to fix a non-parole period for that offence because it would serve no practical purpose in light of the sentence to be handed down for the murder offence: s 45(1)(c) of the Sentencing Procedure Act. The sentence for the intimidation offence will be a fixed term of imprisonment that will be partly concurrent, in deference to the principle of totality.
4. In fixing sentence for the murder offence, pursuant to s 22A of the Sentencing Procedure Act, I take into account that the defence facilitated the administration of justice. In that regard, I note that there were clearly areas of major agreement between the parties that resulted in some witnesses not being required and others having their statements being read, instead of their appearance. The cross-examination of prosecution witnesses was also kept concisely to the point. The estimate for the trial when it was first set down was ten weeks. Shortly before its commencement date, an order was made for the trial to proceed by judge alone, for reasons explained in R v Fuller (No 1) [2024] NSWSC 1206, which shortened the estimate. I retired to consider my verdict on 17 October 2024, which was about four weeks after the trial commenced, and well within the revised estimate. I will indicate what the sentence would have been, but for the approach taken by the defence which facilitated the administration of justice.

A s 166(1)(b) back-up charge

1. The offender is charged with an offence contrary to s 118(1) of the Road Transport Act 2013 (NSW), namely, driving a vehicle with menaces, as a back-up charge. In view of the fact that the offender pleaded guilty to the intimidation offence, which subsumes the criminality in the back-up offence, that charge will be dismissed.

Crimes (High Risk Offenders) Act 2006 (NSW)

1. I am required by the terms of the Crimes (High Risk Offenders) Act 2006 (NSW) to ensure the offender is made aware of the potential application of that Act to him. In that respect, I would be grateful if the offender's legal representatives would explain to him how that Act might apply as he approaches the end of his sentence.

Orders

1. The offender is sentenced as follows: 1. For the offence of the intimidation of Gregory Hunt, the offender is sentenced to a fixed sentence of 19 weeks imprisonment, backdated to commence on 28 July 2021 and to expire on 7 December 2021; 2. For the offence of the murder of Mark Tozer, the offender is sentenced to a term of imprisonment of 28 years, which is backdated to commence on 28 September 2021 and which will expire on 27 September 2049. I fix a non-parole period of 19 years and 6 months, which will expire on 27 March 2041. 3. I indicate that had it not been for the allowance made pursuant to s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the total sentence would have been 30 years. 4. The charge of driving a vehicle with menaces, contrary to s 118(1) of the Road Transport Act 2013 (NSW), is dismissed, pursuant to s 167(1)(a) of the Criminal Procedure Act 1986 (NSW).

Endnotes

1. Ex O in the trial at [26].
2. The verdict judgment at [99].
3. Ibid at [151]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 March 2025