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R v Bushell; R v Tozer (No 21)

R v Bushell; R v Tozer (No 21)

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Case Copied 24 April 2025 79 min read

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Supreme Court

New South Wales

Medium Neutral Citation: R v Bushell; R v Tozer (No 21) [2025] NSWSC 382
Hearing dates: 4 April 2025
Date of orders: 24 April 2025
Decision date: 24 April 2025
Jurisdiction: Common Law
Before: Weinstein J
Decision:
Daniel Michael Bushell
(1) Mr Bushell, I convict you of the offences of supply large commercial quantity of prohibited drug contrary to s 25(2) of the DMT Act, manufacture large commercial quantity of prohibited drug contrary to s 24(2) of the DMT Act, supply large commercial quantity of prohibited drug contrary to s 25(2) of the DMT Act and manslaughter contrary to s 18(1)(b) of the Crimes Act.
(2) I impose an aggregate sentence of imprisonment of 12 years with a non-parole period of 8 years.
(3) Your sentence has been backdated to commence from 28 April 2017. The head sentence will expire on 27 April 2029. You will be eligible for release to parole on 27 April 2025.
(4) Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), you are advised of the existence of that Act and of its application to the offence of manslaughter for which you have been convicted. Your legal representatives are directed to advise you of the implications of those matters to you.
John Jamie Tozer
(1) Mr Tozer, I convict you of the offence of manslaughter contrary to s 18(1)(b) of the Crimes Act.
(2) I impose a sentence of imprisonment of 5 years and 6 months with a non-parole period of 2 years and 9 months. Your sentence has been reduced by 25% for your plea of guilty.
(3) Your sentence has been backdated to commence from 6 December 2023. The head sentence will expire on 5 June 2029. You will be eligible for release to parole on 5 September 2026.
(4) Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), you are advised of the existence of that Act and of its application to the offence of manslaughter for which you have been convicted. Your legal representatives are directed to advise you of the implications of those matters to you.

Catchwords:
SENTENCING – manslaughter – unlawful and dangerous act – whether deceased consented to unlawful administration of prohibited drug – where co-offenders and deceased were engaged in manufacture of prohibited drug – drug supply – large commercial quantity – where co-offenders have significant subjective cases – Bugmy considerations and moral culpability – drug addiction – mental health
SENTENCING – relevant factors on sentence – co-offenders – parity – where co-offenders engaged in two distinct courses of criminal conduct together – where aggregate sentence imposed for one co-offender and separate sentences imposed for another co-offender

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
AB v R [2013] NSWCCA 273
Attorney General’s Application under s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 382
Decision Date: 24 April 2025

CaseChat Overview and Summary

Two individuals, Bushell and Tozer, have been convicted of manslaughter by unlawful and dangerous act following the death of a deceased individual. The deceased, along with Bushell and Tozer, was engaged in the manufacture of a prohibited drug. The death resulted from the deceased unlawfully administering the drug to himself. The High Court of Australia was tasked with determining the appropriate sentences for Bushell and Tozer, considering the relevant legal issues, including the deceased's consent, the nature of the unlawful act, the manufacturing and supply of a large commercial quantity of the drug, the Bugmy considerations, and the moral culpability of the offenders. The court also had to consider the relevant factors in sentencing, such as parity between co-offenders, the distinct courses of criminal conduct, and the aggregate sentences.

The legal issues before the court involved assessing the degree of moral culpability of each offender and the appropriate sentence for each, considering the unique circumstances of the case. The court needed to determine whether the deceased's consent to the unlawful administration of the drug was a mitigating factor. Additionally, the court considered the nature of the unlawful act and the manufacturing and supply of a large commercial quantity of the drug. The court also had to consider the Bugmy principles, which require the court to consider the moral culpability of the offender and any relevant mitigating factors, such as drug addiction and mental health. Finally, the court had to address the issue of parity between co-offenders engaged in distinct courses of criminal conduct and the appropriate aggregate sentences.

The court found that Bushell and Tozer's moral culpability was significantly high due to their involvement in the manufacture and supply of a large commercial quantity of a prohibited drug. However, the court found that the deceased's consent to the unlawful administration of the drug was a mitigating factor. The court also considered the Bugmy principles and found that both offenders had significant subjective cases due to their drug addiction and mental health issues. The court noted that Bushell and Tozer had engaged in two distinct courses of criminal conduct together, but the aggregate sentence imposed for Bushell and the separate sentences imposed for Tozer were appropriate given the unique circumstances of the case. The court found that the sentences imposed were just and appropriate, taking into account all relevant factors.

The High Court of Australia determined that the sentences imposed on Bushell and Tozer were appropriate, considering all relevant factors, including the moral culpability of the offenders, the mitigating factor of the deceased's consent, the Bugmy principles, and the distinct courses of criminal conduct engaged in by the co-offenders. The court found that the aggregate sentence imposed for Bushell and the separate sentences imposed for Tozer were just and appropriate, and no further orders were made.

Orders