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Category: Principal judgment

Parties: John Jamie Tozer (Applicant)
Rex (Respondent)

Representation: Counsel:
K Prince (Applicant)
S Traynor (Respondent)
Solicitors:
Fahmy Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/00230025

Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, John Jamie Tozer, sought leave to appeal against the sentence imposed on him in the Supreme Court of New South Wales following his plea of guilty to an offence of manslaughter, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW). The applicant was sentenced to 5 years and 6 months imprisonment with a non-parole period of 2 years and 9 months.

At the time the applicant was sentenced for the offence of manslaughter, he was serving the parole period of a sentence of 9 years imprisonment with a non-parole period of 5 years and 9 months for a series of distinct drug offences. The applicant’s sentence for the manslaughter offence was set to commence at the expiry of the non-parole period for these drug offences.

The applicant sought leave to appeal his sentence on the following grounds:

(1) The sentencing judge erred in the exercise of his discretion by not imposing a partially concurrent sentence.

(2) The sentence imposed upon the applicant was manifestly excessive.

The Court (Dhanji J, N Adams CJ at CL and Richardson J agreeing) held**, granting leave to appeal but dismissing the appeal:**

As to ground 1:

(1) While the manslaughter offence was committed in the same context as the drug offences, the manslaughter offending was discrete and of a different character. The circumstances were not such as to mandate a degree of concurrency between the manslaughter sentence and the non-parole period of the sentence for the drug offences: at [17]-[19].

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57; Redfern v R [2012] NSWCCA 178; 228 A Crim R 56; Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41; R v XX [2009] NSWCCA 115; 195 A Crim R 38; Harris v R [2023] NSWCCA 44, considered.

(2) As the applicant’s complaint under ground 1 was not as to any specific error of the sentencing judge, but rather as to the result of his Honour’s exercise of discretion in the determination of the commencement date, the applicant’s real complaint was that the sentence was manifestly excessive: at [20].

As to ground 2:

(3) The sentence of 5 years and 6 months with a non-parole period of 2 years and 9 months, having regard to all the circumstances, was not unreasonable or plainly unjust. Nor was the total effective sentence which resulted from the imposition of the manslaughter sentence given that it incorporated the additional and distinct criminality of the manslaughter offence. As such, viewed both in isolation and having regard to its effect when combined with the sentence for the drug offences, the sentence was not manifestly excessive: at [25]-[29].

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95; R v White [2023] NSWSC 611; R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159, considered.

JUDGMENT

1. N ADAMS CJ AT CL: I agree with Dhanji J.

2. DHANJI J: The applicant, John Jamie Tozer, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him in the Supreme Court of New South Wales at Sydney on 24 April 2025 by Weinstein J for an offence of manslaughter in relation to the death of Ricky Ciano (the deceased). The offence was committed between 11 and 13 February 2017.

3. The sentencing judgment is available online: R v Bushell; R v Tozer (No 21) [2025] NSWSC 382. That judgment comprehensively deals with the facts of the offence, the case of the applicant and the various submissions made at first instance. For the purposes of this judgment, the background can be set out reasonably briefly.

4. The matter has had a protracted history. The applicant was initially charged with murder. The applicant pleaded not guilty to murder. His offer to plead guilty to manslaughter was rejected by the Crown and he was committed for trial on the charge of murder. A joint trial with his co-offender, Daniel Bushell, commenced before Rothman J on 24 July 2023. The trial against the applicant was vacated as a result of inadequate disclosure by the prosecution with respect to an informer witness, though Mr Bushell’s trial continued. There were various delays in the applicant’s proceedings in the Supreme Court. In the meantime he was sentenced for various drug related offences in the District Court. On 12 February 2025 the applicant was arraigned and pleaded not guilty to murder but guilty to manslaughter. On this occasion the Crown accepted the plea in full satisfaction of the indictment.

5. Following the application of a 25 per cent discount for the utilitarian value of the applicant’s plea of guilty (or at least its value had it been accepted by the Crown when first offered), the applicant was sentenced to 5 years and 6 months imprisonment, commencing on 6 December 2023 and expiring on 5 June 2029, with a non-parole period of 2 years and 9 months due to expire on 5 September 2026. The effect of the commencement date was to make the sentence cumulative on the expiry of the non-parole period of the sentence imposed in the District Court for the drug offences. This commencement date is the subject of complaint on this application.

6. The offence of manslaughter is defined in s 18(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty available for the offence is 25 years imprisonment: Crimes Act, s 24. There is no standard non-parole period.

7. The applicant’s liability for manslaughter was as an accessory at the fact, arising from his presence at and assistance in the commission of the unlawful act causing Mr Ciano’s death. That act was the intravenous administration of prohibited drugs, namely a mixture of cocaine and heroin (apparently known as a “speedball”), by Mr Bushell. The applicant provided the prohibited drugs to Mr Bushell to be injected into the deceased. The sentencing judge found on the balance of probabilities that the drugs were administered with the consent of the deceased. The lethal injection was given at a time when the applicant, Mr Bushell and the deceased were at a clandestine laboratory for the purposes of manufacturing prohibited drugs, an enterprise in which all three men were engaged. The remoteness of this location added to the danger to which deceased was exposed. In the event, following the injection neither the applicant, nor anyone on his behalf, made any attempt to obtain medical assistance for Mr Ciano. After his death the applicant instructed another to move the deceased’s body to a location away from the clandestine laboratory. No attempt was made to notify an appropriate authority of the death, the body being left for a member of the public to find. The applicant lied to the deceased’s wife when she made enquiries as to his whereabouts. Following these events the applicant remained engaged in the manufacturing enterprise with the result that the drug offences for which the applicant was sentenced both pre-dated and post-dated the manslaughter offence.

8. The sentencing judge set out the applicant’s subjective circumstances at length. The applicant had a limited but serious criminal history which did not assist him. The sentencing judge did, however, find that the applicant was remorseful at the time of sentence. The sentencing judge also accepted that the applicant had a disadvantaged childhood, which included serious and regular violence at the hands of his father and exposure to significant drug use at a young age, following which he himself developed ongoing issues with polysubstance drug abuse. The applicant also experienced sexual abuse in his adolescence while in custody at a juvenile justice centre. He was diagnosed with complex post-traumatic stress disorder, severe opioid use disorder and severe amphetamine-type stimulant use disorder. His Honour found that the applicant’s significant background of deprivation reduced his moral culpability for the manslaughter offence and ultimately made a finding of special circumstances, accepting the need for a longer parole period in the light of the applicant’s history of drug addiction and mental health issues.

9. At the time the applicant was sentenced for the offence of manslaughter he was serving a sentence of 9 years, commencing 7 March 2018 and expiring 6 March 2027, with a non-parole period of 5 years and 9 months, expiring 6 December 2023. This sentence was imposed by her Honour Judge Flannery SC in the District Court in relation to two counts of supplying a large commercial quantity of a prohibited drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 198**5 (NSW) (DMTA) and one count of manufacturing a large commercial quantity of a prohibited drug, contrary s 24(2) of the DMTA. As noted above, the applicant’s sentence for the manslaughter offence was set to commence at the expiry of the non-parole period for these drug offences.

10. The grounds of appeal on which the applicant seeks to rely are as follows:

“(1) The sentencing judge erred in the exercise of his discretion by not imposing a partially concurrent sentence.

(2) The sentence imposed upon the applicant was manifestly excessive.”

11. Having regard to the length of the sentence imposed and arguments advanced on behalf of the applicant I would grant leave to appeal. However, for the reasons set out below, I would dismiss the appeal.

Ground 1: The sentencing judge erred in the exercise of his discretion by not imposing a partially concurrent sentence

12. At the hearing of the appeal the applicant confirmed that the complaint under this ground is not as to any specific error made by the sentencing judge. Rather the complaint is as to the result of his Honour’s exercise of discretion in the determination of the commencement date of the sentence. In other words, the applicant’s complaint is that his Honour’s decision to commence the sentence at the expiry of the applicant’s earlier non-parole period was, in the language of H**ouse v T**he King (1936) 55 CLR 499 at 505; [1936] HCA 40, “unreasonable or plainly unjust” such that a failure to properly exercise the sentencing discretion can be inferred.

13. As has been set out above, at the time the applicant stood to be sentenced he was serving an earlier sentence imposed by her Honour Judge Flannery SC. The sentence for the present matter was imposed on 24 April 2025, that is, during the currency of the parole period of the earlier sentence. By operation of s 47 of the C**rimes (Sentencing P**rocedure) A**ct 1999 (NSW) (the Sentencing Act), the latest date on which the sentence could have commenced was the date of sentence.

14. While the sentence was backdated to commence at the expiry of the earlier non-parole period, I accept the applicant’s submission that to have commenced the sentence at any later time would have resulted in unfairness to the applicant. That is because it was only due to the delay in the applicant being sentenced that he came to be sentenced at a time by which his earlier non-parole period had expired. Had he been sentenced prior to the expiry of that non-parole period, the latest date on which the sentence could have commenced would have been the expiry date of the non-parole period: Sentencing Act, s 47(4)(b). That is the date his Honour ultimately set. The question is whether doing so was unreasonable or plainly unjust as to warrant a conclusion that some undisclosed error of principle has occurred. In the present case, that translates to a question of whether, despite the absence of any identifiable error in his Honour’s reasons for sentence with respect to the principles of totality, the result establishes some failure in this regard.

15. In Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 (at [37]), Bell and Keane JJ said the following with respect to the principle of totality:

“Just as a sentencing judge is accorded as much flexibility as is consonant with the statutory sentencing regime in determining the appropriate sentence, so, too, the judge is to be accorded the same flexibility in determining the structure of two or more sentences. The Sentencing Act does not confine the approach to be taken to the structure of two or more sentences. It assumes concurrency in the absence of a direction to the contrary. The sentencing judge was required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence was just and appropriate to the totality of the appellant's offending behaviour. As the Court of Criminal Appeal correctly said, the question of concurrency or partial accumulation required consideration of whether the sentence for the manslaughter offence could encompass the criminality of both offences.” (footnotes omitted)

16. Whether the sentence imposed with respect to one offence can encompass the criminality of another offence, or the extent to which it might do so, will require consideration of both the terms of the respective sentences and the relationship between the offences. Where offences are closely related, the observation in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 (at [40]) per McHugh, Hayne and Callinan JJ, that “the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn”, will likely be relevant. To pick a simple example, a person sentenced for supply of a drug on three or more occasions for a material reward may have a legitimate argument that their possession of the money received, while a distinct offence, does not add to the overall criminality reflected in the supply offence, and that any sentence for possession of the funds received ought not to add to the sentence: see Redfern v R [2012] NSWCCA 178; 228 A Crim R 56 at [16]. In such circumstances it is easy to see how the sentence for one offence might encompass the criminality of the other offence: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]. See also R v XX [2009] NSWCCA 115; 195 A Crim R 38 at [52]; Harris v R [2023] NSWCCA 44 at [15].

17. The applicant, in support of his argument, stressed the relationship between the present offence and the drug offences. The present case is clearly far removed from the example given above. To the extent that there is any relationship between the offences, it can be accepted that the manslaughter offence was committed in the context of the drug offences. It was committed within the period in which the drug offences took place, at the location of a clandestine laboratory where the manufacture took place, and the deceased was present as part of his joint involvement in the manufacturing offence. But the fact that the offences were committed in the same context does not mean they were related in terms of the underlying criminality involved in each. It is that underlying criminality that the law seeks to punish. Beyond the matters of context, the present offence was clearly distinct.

18. The sentencing judge was plainly aware of the contextual relationship between the matters, noting (at [317]) that “the manslaughter (which itself occurred on the premises of a clandestine drug laboratory) happened in the middle of the dates of the drug offending”. The overlap in context did bring into play the same or similar aspects of the applicant’s subjective case which led to him engaging in the (disparate) offences. This may have founded a degree of concurrence. It did not, however, mandate any such result. Pointing the other way is the fact that the applicant continued with his involvement in the drug offences, despite having witnessed firsthand the capacity of prohibited drugs to wreak destruction on those who consume them. This did not reflect positively on him. This was (or would have been) relevant to the sentence imposed for the drug offences and the applicant was, perhaps, fortunate that it was not taken into account as a result of him having been sentenced for the drug offences prior to his liability for the death having been established. It did, nonetheless, have the related result that the timing of the manslaughter offence (during the currency of the drug offending) was not something that required any degree of concurrency between the manslaughter sentence and the earlier non-parole period.

19. It is additionally to be observed that the drug offences were ongoing and committed over a significant period of time. Ultimately, any commonality between the offences based on the context in which they were each committed cannot disguise the fact that the offending was both discrete and of a quite different character.

20. In deference to the applicant’s argument, I have, above, considered the argument for a degree of concurrence. As well as any relationship between the various offences for which an offender is sentenced, totality, and the extent to which one sentence is able to comprehend additional offences, of course requires, as observed above, a consideration of the sentences themselves, including in particular their overall effect. In the present case the sentence imposed by Weinstein J had the effect of creating a new total effective sentence of 11 years and 3 months, with a non-parole period of 8 years and 6 months. That result is, of course, a product of the combination of the commencement date and the length of the new sentence. This underscores the reality that the applicant’s real complaint is that the sentence is manifestly excessive. It is necessary to consider this in the context of ground 2.

Ground 2: Manifest excess

21. The principles in relation to establishing a ground of manifest excess are well-established. They were summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (at [443]) as follows:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

• It is not to the point that this court might have exercised the sentencing discretion differently.

• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

• It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

22. Subsequently, in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95, after referring to the above principles, Bell P (Gleeson and McCallum JJA agreeing) said (at [42]):

“To this oft-cited summary of principles, may be added the following:

(1) Sentencing is an ‘exercise of intuitive synthesis of all of the material before the sentencer in order to serve purposes that often pull in different directions’ – Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Tammer-Spence v R [2013] NSWCCA 297 at [56].

(2) Each case has to be considered on its own merits, and no case is entirely similar to any other – Windle at [61].

(3) There is a wide discretion to impose a sentence that seems to the sentencing judge to be just and appropriate – Windle at [61].

(4) An applicant seeking to challenge a sentence on the ground of manifest excess has a ‘very heavy practical burden’, and must show a kind of disproportion which is so ‘manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law’ – R v Elemes [2000] NSWCCA 235 at [22]-[23].

(5) The basis for appellate intervention is in accordance with the principles set out in House v The King (1936) 55 CLR 499; [1936] HCA 40 – Matthews v ASIC [2009] NSWCA 155 at [181]; Dowling at [59].

(6) The starting point of the analysis as to whether a sentence is manifestly excessive is to identify the nature of the offence(s) – Turner at [68].

(7) Whether a sentence is manifestly excessive is a conclusion, and it is not necessary to identify any particular error in the process – Dinsdale at [6]; Simmons at [30].

(8) Whilst a history of sentencing might establish a range of sentences imposed, it does not establish that such a range is the correct range, nor does it establish that the upper and lower limits are the correct upper and lower limits of such a range – Martinez v R [2020] NSWCCA 250 at [39].

(9) Thus, the use of statistics is a somewhat blunt instrument when seeking to establish manifest excess, and statistics may be of limited utility in a particular case and should not be given undue weight – Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]; Fogg v R [2011] NSWCCA 1 at [59]-[60]; Windle at [62]; Furia v R [2010] NSWCCA 326 at [74].

(10) Instead of a comparison of the sentences with statistics, when assessing whether a particular sentence is manifestly excessive, it is important to consider the specific findings as to the objective seriousness of the offence and the culpability of the offender – Holloway v R [2011] NSWCCA 23 at [85]; Windle at [64].”

23. The present case, it can be acknowledged, was far from the worst case of manslaughter. As the applicant stressed, his Honour found that the deceased had consented to the injection of drugs. The deceased was, additionally, a person close to the applicant who was consequently impacted by his loss. The applicant had a reasonable subjective case. Accepting these features, it remained the case, it being the central feature of an offence of manslaughter, that the applicant was to be sentenced with respect to his criminal liability for the death of another human being. Further, his subjective case was undermined by his criminal history, impacting the degree of leniency that could be extended to him.

24. The determination of sentence for an offence of manslaughter, having regard to its central feature of responsibility for the death of another, and the myriad ways in which the offence can be committed, is notoriously difficult. As was said by Beech-Jones CJ at CL in R v White [2023] NSWSC 611 (at [25]-[27]):

“25 It has long been accepted that, of all crimes, manslaughter is said to ‘throw up the greatest variety of circumstances affecting culpability’ (R v Blacklidge, Court of Criminal Appeal (NSW), 12 December 1995, unrep per Gleeson CJ). There are various forms of manslaughter, including gross negligence and a killing that is otherwise murder but occasioned by gross provocation. No category of manslaughter is inherently more serious than another.

26 The form of manslaughter to which the offender pleaded guilty is manslaughter by unlawful and dangerous act. As the agreed facts state, the unlawful act was punching Dr Johnson. For an act to be ‘dangerous’, a reasonable person in the position of the offender must have appreciated that the act exposed another person to a risk of serious injury. In this case, the act was ‘dangerous’, at least in part, because of its proximity to the clifftop. The relevant state of mind required to be guilty of this form of manslaughter is an intention to commit the relevant act. It is not necessary for the offender to be subjectively aware that the relevant act was dangerous.

27 Even with manslaughters by unlawful and dangerous act, there are a variety of circumstances that can render one crime more serious than others. To that end, one of the fundamental aspects of sentencing is to assess the objective seriousness of the specific crime committed (see DS v R (2022) 109 NSWLR 82; [2022] NSWCCA 156; “DS”). However, it is not necessary to determine where the individual offence falls on some hypothetical range of offending. In the case of manslaughter, it is preferable to avoid such an assessment (Paterson v R [2021] NSWCCA 273 at [33]).”

25. The sentence of 5 years and 6 months reflects a starting point, prior to the application of the discount for the utilitarian value of the plea of guilty, of 7 years and 4 months. While this may not have been the most serious case of manslaughter, that starting point does not immediately strike me as excessive. That the deceased assumed a risk in agreeing to the injection of prohibited drugs does not alter the fact that the applicant, by his criminal and dangerous act, put the deceased’s life at risk. The risk was increased both by the remote location where the drugs were administered and the, perhaps associated, failure to call for any medical assistance. It was the materialisation of that risk that was the central feature of the offence for which the applicant was to be punished. In other words, while, had the deceased survived, the applicant’s offence would have been relatively minor, the seriousness of the offence is very much informed by the result. Beyond the result, the applicant failed to responsibly deal with what had occurred, concealing the death from the deceased’s wife and moving the body to a location where it would be found by a member of the public.

26. It is also to be observed that the impact of the sentence was, to an extent, mitigated by the favourable proportion which the non-parole period bears to the total.

27. Having regard to all relevant considerations, and in particular the materialisation of the risk taken by the applicant, the sentence, when viewed in isolation, was not so unreasonable or unjust as to bespeak some undisclosed error of principle.

28. The above conclusion does not resolve this ground. It is, as I have observed in the context of ground 1, necessary to look not just at the length of the sentence but also the actual effect of the sentence on the applicant. The applicant’s pre-existing non-parole period was extended by 2 years and 9 months and the total by 2 years and 3 months. These increases must be viewed with the understanding that the severity of a sentence will increase as it gets longer at a rate which is non-linear, particularly in the case of lengthy sentences: R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [16]. The present case is an example. The increases to the non-parole period and the total take the applicant, as noted above, from a sentence of 9 years with a non-parole period of 5 years and 9 months to one of 11 years and 3 months with a non-parole period of 8 years and 6 months. That is a significantly more substantial sentence than was being served based on the drug offences alone. But that does not make it wrong. It incorporates the additional and distinct criminality of the manslaughter offence. Having regard to that additional criminality, the sentence is not unreasonable or plainly unjust.

29. Based on the above, I am not persuaded that the sentence imposed for the offence of manslaughter is, either viewed in isolation or having regard to its effect, manifestly excessive. It follows that both grounds of appeal must fail.

30. I propose the following orders:

31. Leave to appeal granted.

32. Appeal dismissed.

33. RICHARDSON J: I agree with Dhanji J.

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