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R v Toller

R v Toller

Case [2018] NSWDC 287 20 April 2018

Criminal Liability

Sentencing

Fraud

Victim Impact Statement

Criminal Law

No judgment structure available for this case.

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Toller [2018] NSWDC 287
Hearing dates: 12 April 2018
Decision date: 20 April 2018
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Convicted: Aggregate sentence 8 years imprisonment, non-parole period 5 years.

Catchwords: CRIMINAL – sentence – dishonestly obtain financial advantage by deception – pleas of guilty – multiple counts – totality – aggregate sentence – victim impact statement for fraud offences – substantial losses to unsophisticated investors – planning – “special circumstances”
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Bain v R [2006] NSWCCA 79
Blackman & Walters [2001] NSW CCA 121
Cahyadi v R (2007) 168 A Crim R 41
Chen [2015] NSWCCA 122
DPP(Cth) v De La Rosa [2010] NSWCCA 194
Ellis (1996) 6 NSWLR 603
Hammoud (2000) 118 A Crim R 66
Hartman v R [2011] NSWCCA 261
Henry (1999) 46 NSWLR 346
Johnston v R [2017] NSWCCA 53
Miller v R [2014] NSWCCA 34
MMK (2006) A Crim R 481
Moffitt (1990) 20 NSWLR 114
Pont (2000) 121 A Crim R 302
Porter v R [2008] NSWCCA 145
R v Berg [2004] NSWCCA 300
R v De Simoni (1981) 147 CLR 383
R v Engert (1995) 84 A Crim R 67
R v Tuala [2015] NSWCCA 8
R v Van Ryn [2016] NSWCCA 1
R v XX (2009) 195 A Crim R 38
R v Youkhana [2004] NSWCCA 412
R v Zamagias [2002] NSWCCA 17
Yardley v Betts (1979) 1 A Crim R 329
Category: Sentence
Parties: Regina
Edward Charles Toller
Representation: Counsel:
Mr Waldmann (DPP)
Mr Watson (Offender)

File Number(s): 2017/192803
Publication restriction: Nil

Judgment

The prisoner, Edward Charles Toller, appears today before me for sentence in relation to 14 charges of dishonestly obtain financial advantage by deception. Each of those offences is brought pursuant to s 192E(1)(b) Crimes Act 1900. The maximum penalty for each offence is ten years imprisonment. There is no standard non-parole period. There are no matters to be taken into account on a Form 1.
The prisoner was committed for sentence to this Court very speedily on 22 August 2017. The matter came before me last Thursday week when I was in the middle of one trial and had just empanelled a jury in relation to another trial but had sent the jury away for the day.
I propose to accord the prisoner a discount of 25% upon the otherwise appropriate sentence for each offence and that expression of discount will be reflected in the indicative sentences that I propose to indicate, as well as the aggregate sentence that I propose to impose pursuant to s 53A Crimes (Sentencing Procedure) Act 1999, which I hereinafter will refer to as “The Act”.
In the matter I was provided with a considerable body of material, although no oral evidence. That material included the criminal history of the prisoner, and custodial history; an agreed statement of facts; annexures to the agreed statement of…

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.

Continue reading R v Toller

Details

AGLC: R v Toller [2018] NSWDC 287
Case: [2018] NSWDC 287
Decision Date: 20 April 2018

CaseChat Overview and Summary

In the matter of R v Toller, the appellant was convicted on multiple counts of obtaining financial advantage by deception. The court was tasked with determining an appropriate aggregate sentence, taking into account the totality of the offending. The appellant pleaded guilty to the charges, which involved significant losses to unsophisticated investors. The court considered a victim impact statement that detailed the substantial harm caused by the fraud.

The legal issues before the court involved assessing the appropriate length and structure of the sentence, with a particular focus on the principle of totality, and whether the circumstances warranted a departure from the usual sentencing practices due to what the court deemed "special circumstances." The court had to balance the need for punishment and deterrence with the requirement to consider the specific characteristics of the offending and the impact on the victims.

The court, after considering the totality of the offending and the particular circumstances, determined that an aggregate sentence of eight years imprisonment, with a non-parole period of five years, was appropriate. The court recognised the substantial planning and sophistication involved in the offending, as well as the severe impact on the victims, who were described as unsophisticated investors. This led the court to conclude that a departure from the usual sentencing approach was warranted, taking into account what was termed "special circumstances."

Orders

Orders of the court

Convicted: Aggregate sentence 8 years imprisonment, non-parole period 5 years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Toller [2018] NSWDC 287

Cases Citing This Decision

No citing cases yet.

Cases Cited

Johnston v R [2017] NSWCCA 53
Citation 1 (Para 80)

…tivation for the offending behaviour as it does here. I note for example the observations of the Court of Criminal Appeal in the decision of Johnston [2017] NSWCCA 53, particularly at [36] - [38] where these matters are discussed. There was some reference by the prisoner’s counsel to a decision of Hartman , the cit…
R v Van Ryn [2016] NSWCCA 1
Citation 2 (Para 183)

…I also note what has been observed by the Court of Criminal Appeal in R v Van Ryn [2016] NSWCCA 1, particularly adopting what Chief Justice Street said about the totality of criminality at [228].…
Chen v R [2015] NSWCCA 122
Citation 3 (Para 97)

…a couple of supposedly “comparable cases”. They are of limited value and assistance. I note Johnston was one such case and another case was Chen [2015] NSWCCA 122. Whilst there were various similarities and dissimilarities in those matters, similarities in the quantum of financial gain and the like being one such m…
R v Tuala [2015] NSWCCA 8
Citation 4 (Para 18)

…Counsel for the prisoner quite properly took me to the decision of Tuala [2015] NSWCCA 8, particularly at [58]. But I also note the contents of [59] where the Court cited a judgment of Hidden J in the decision of Youkhana [2004] NSWCCA 412, and also paras [64] - [65], particularly at [65] where Sully J is quoted f…
Miller v R [2014] NSWCCA 34
Citation 5

…mmoud (2000) 118 A Crim R 66 Hartman v R [2011] NSWCCA 261 Henry (1999) 46 NSWLR 346 Johnston v R [2017] NSWCCA 53 Miller v R [2014] NSWCCA 34 MMK (2006) A Crim R 481 Moffitt (1990) 20 NSWLR 114 Pont (2000) 121 A Crim R 302 Porter v R [2008] NSWCCA 145 R v Berg [2004] NSWCCA 300 R v De Simoni (1981) 147 CLR 383 R v…
Hartman v R [2011] NSWCCA 261
Citation 6

…[2015] NSWCCA 122 DPP(Cth) v De La Rosa [2010] NSWCCA 194 Ellis (1996) 6 NSWLR 603 Hammoud (2000) 118 A Crim R 66 Hartman v R [2011] NSWCCA 261 Henry (1999) 46 NSWLR 346 Johnston v R [2017] NSWCCA 53 Miller v R [2014] NSWCCA 34 MMK (2006) A Crim R 481 Moffitt (1990) 20 NSWLR 114 Pont (2000) 121 A Crim R 302 Porter v…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 7 (Para 83)

…lated evidence which provides a basis for any serious consideration of various matters discussed by McClennan CJ at CL, in the decision of De La Rosa [2010] NSWCCA 194, particularly at [177] - [178]. There is no specific condition identified as existing at the relevant time of the particular conduct that would warra…
Porter v R [2008] NSWCCA 145
Citation 8

…CA 53 Miller v R [2014] NSWCCA 34 MMK (2006) A Crim R 481 Moffitt (1990) 20 NSWLR 114 Pont (2000) 121 A Crim R 302 Porter v R [2008] NSWCCA 145 R v Berg [2004] NSWCCA 300 R v De Simoni (1981) 147 CLR 383 R v Engert (1995) 84 A Crim R 67 R v Tuala [2015] NSWCCA 8 R v Van Ryn [2016] NSWCCA 1 R v XX (2009) 195 A Crim R…
Bain v R [2006] NSWCCA 79
Citation 9 (Para 18)

…ecision of Youkhana [2004] NSWCCA 412, and also paras [64] - [65], particularly at [65] where Sully J is quoted from his decision in the case of Bain [2006] NSWCCA 79.…
R v Youkhana [2004] NSWCCA 412
Citation 10 (Para 18)

…[2015] NSWCCA 8, particularly at [58]. But I also note the contents of [59] where the Court cited a judgment of Hidden J in the decision of Youkhana [2004] NSWCCA 412, and also paras [64] - [65], particularly at [65] where Sully J is quoted from his decision in the case of Bain [2006] NSWCCA 79.…
R v Berg [2004] NSWCCA 300
Citation 11 (Para 58)

…Paragraph [59] refers to Woods’s J judgment when he was the Chief Judge of Common Law Division, in the decision of Berg [2004] NSWCCA 300. He noted:…
R v Zamagias [2002] NSWCCA 17
Citation 12 (Para 61)

…It should be noted that the observations cited from Howie J in the decision of Zamagias [2002] NSWCCA 17, particularly at [32], are to be seen in the context of one of the earlier cases concerning the appropriateness of suspending a term of imprisonment pursuant to s 12 of the Act. His Honour’s observations about h…
R v Henry [1999] NSWCA 111
Citation 13 (Para 81)

…I note what was said by Justice Wood, then the Chief Judge of the Common Law Division, in Henry (1999) 46 NSWLR 346, particularly at [273] in the context of holding that drug addiction is not a mitigating factor to be taken into account in sentencing. Justice Wood, however, at the paragraph that I have cited, made the…
Pearce v The Queen [1998] HCA 57
Citation 14 (Para 181)

…fences. I am required to have regard to the totality of the criminality in that regard. I note what the majority of the High Court said in Pearce v R (1998) 194 CLR 610, particularly at [45]. I do not propose to dilate upon a number of decisions of the Court of Criminal Appeal but I particularly note the decision of…
R v De Simoni [1981] HCA 31
Citation 15

…offitt (1990) 20 NSWLR 114 Pont (2000) 121 A Crim R 302 Porter v R [2008] NSWCCA 145 R v Berg [2004] NSWCCA 300 R v De Simoni (1981) 147 CLR 383 R v Engert (1995) 84 A Crim R 67 R v Tuala [2015] NSWCCA 8 R v Van Ryn [2016] NSWCCA 1 R v XX (2009) 195 A Crim R 38 R v Youkhana [2004] NSWCCA 412 R v Zamagias [2002] NSWCC…
Yardley v Betts (1979) 22 SASR 108
Citation 16

…WCCA 8 R v Van Ryn [2016] NSWCCA 1 R v XX (2009) 195 A Crim R 38 R v Youkhana [2004] NSWCCA 412 R v Zamagias [2002] NSWCCA 17 Yardley v Betts (1979) 1 A Crim R 329 Category: Sentence Parties: Regina Edward Charles Toller Representation: Counsel: Mr Waldmann (DPP) Mr Watson (Offender) File Number(s): 2017/192803 Publicati…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 3)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v Toller [2018] NSWDC 287
Hearing dates:	12 April 2018
Decision date:	20 April 2018
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Convicted: Aggregate sentence 8 years imprisonment, non-parole period 5 years.
Catchwords:	CRIMINAL – sentence – dishonestly obtain financial advantage by deception – pleas of guilty – multiple counts – totality – aggregate sentence – victim impact statement for fraud offences – substantial losses to unsophisticated investors – planning – “special circumstances”
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bain v R [2006] NSWCCA 79 Blackman & Walters [2001] NSW CCA 121 Cahyadi v R (2007) 168 A Crim R 41 Chen [2015] NSWCCA 122 DPP(Cth) v De La Rosa [2010] NSWCCA 194 Ellis (1996) 6 NSWLR 603 Hammoud (2000) 118 A Crim R 66 Hartman v R [2011] NSWCCA 261 Henry (1999) 46 NSWLR 346 Johnston v R [2017] NSWCCA 53 Miller v R [2014] NSWCCA 34 MMK (2006) A Crim R 481 Moffitt (1990) 20 NSWLR 114 Pont (2000) 121 A Crim R 302 Porter v R [2008] NSWCCA 145 R v Berg [2004] NSWCCA 300 R v De Simoni (1981) 147 CLR 383 R v Engert (1995) 84 A Crim R 67 R v Tuala [2015] NSWCCA 8 R v Van Ryn [2016] NSWCCA 1 R v XX (2009) 195 A Crim R 38 R v Youkhana [2004] NSWCCA 412 R v Zamagias [2002] NSWCCA 17 Yardley v Betts (1979) 1 A Crim R 329
Category:	Sentence
Parties:	Regina Edward Charles Toller
Representation:	Counsel: Mr Waldmann (DPP) Mr Watson (Offender)
File Number(s):	2017/192803
Publication restriction:	Nil