R v Toyer (No 2) - [2021] NSWDC 92

District Court

New South Wales

Medium Neutral Citation: R v TOYER (NO 2) [2021] NSWDC 92
Hearing dates: 29 March 2021
Date of orders: 29 March 2021
Decision date: 29 March 2021
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Resentenced – see paragraphs [20]-[24]

Catchwords:
SENTENCING – penalties – Intensive Correction Orders not available to offence of manslaughter
SENTENCING – non parole period – principles to be applied.

Legislation Cited:
Crimes (Sentencing Procedure) Act, 1999

Cases Cited:
Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10
R v Boney [2008] NSWCCA 313

Category: Sentence
Parties: Director of Public Prosecutions (The Crown)
Rian Ross TOYER
Representation:
Counsel:
Ms. V Morgan, Crown Prosecutor
Mr M Dennis SC for the offender
Solicitors:
Mr A Thomas DPP
Mr Z Tankard of Tankards Law for the offender

File Number(s): 2019/296012
Publication restriction: No

Judgment

These reasons presume a familiarity with my previous reasons in this matter published as R v Toyer [2021] NSWDC 69. I do not resile from nor seek to modify any of those reasons or findings contained in that decision up to and including paragraph [83]. I wish to make it clear that the findings I made as to the seriousness of the matter were in the context of matters of manslaughter by dangerous and unlawful act.

Sentencing Error

For reasons which I gave in that decision I imposed a sentence of imprisonment of 22 months (1 year 10 months) and purported to order that the sentence be served by way of Intensive Correction Order. It was brought to my attention during the evening of 19 March 2021 that pursuant to s 67(1) of the Crimes (Sentencing Procedure) Act, 1999 that course was not available given that the offender was convicted and being sentenced for the offence of Manslaughter.
Clearly in purporting to impose an Intensive Correction Order I made an error. That error was fundamental and significant and one of which I must take ownership. It will be necessary to re-open the sentencing proceedings pursuant to s 43 of the Crimes (Sentencing Procedure) Act to correct this fundamental and significant error. During a short further sentence hearing today (29 March 2021) both parties indicated that there was agreement that the error was one that was amenable to be corrected by using s 43 of the Sentencing Act. Mr Dennis SC provided short written submissions which were marked as an MFI.
However, I make a number of observations, which are not in any particular order. Firstly, in my previous reasons at paragraphs [74]-[76] I summarised the statistics kept by the Judicial Commission in respect of sentences imposed for the offence of manslaughter. I note that in the “pre-reform statistics” an Intensive Correction Order was an available sentence. The Intensive Correction Order pre-reform (i.e. prior to the sentencing reforms of 2018) was not as onerous as under the present sentencing regime. There is clear authority from the superior courts that sentencing courts are in error if they do…

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 Toyer (No 2)

Details

AGLC: R v Toyer (No 2) [2021] NSWDC 92
Case: [2021] NSWDC 92
Decision Date: 29 March 2021

CaseChat Overview and Summary

In the case of R v Toyer (No 2), the appellant, Toyer, was sentenced for manslaughter in the Supreme Court of New South Wales. The central issue before the court was the appropriateness of the sentence handed down to Toyer for his crime and whether the sentence should be altered. The case concerned the principles of sentencing, particularly the availability of Intensive Correction Orders (ICO) and the determination of a non-parole period. The court was tasked with reviewing the original sentence to ensure it adhered to legal principles and was proportionate to the offence committed.

The primary legal issues addressed by the court were the applicability of ICOs for the offence of manslaughter and the correct principles to be applied in setting a non-parole period. The court examined whether ICOs, which are typically available for less serious offences, could be imposed in cases of manslaughter. Additionally, the court assessed the factors relevant to determining a non-parole period, including the nature of the offence, the degree of culpability, and the circumstances surrounding the crime. The court needed to ensure that the sentence was just and appropriate, taking into account both the seriousness of the offence and the individual circumstances of the offender.

The court found that ICOs were not an appropriate sentence for the offence of manslaughter due to the gravity of the crime. It was determined that the original sentence did not adequately reflect the seriousness of the manslaughter and the need for general and specific deterrence. The court also reviewed the principles used to set the non-parole period, concluding that the original period was insufficient to adequately serve the purposes of punishment and deterrence. Consequently, the court resentenced Toyer, imposing a more appropriate sentence that reflected the severity of the crime and the need for public protection.

The final orders of the court involved resentencing Toyer. The new sentence included a custodial term and a non-parole period that the court deemed more appropriate given the circumstances of the case. The court provided detailed reasoning for the new sentence, emphasizing the importance of proportionality and the need to deter similar offences in the future. The resentencing ensured that the punishment was commensurate with the seriousness of the crime and served the broader objectives of the criminal justice system.

Orders

Orders of the court

Resentenced – see paragraphs [20]-[24]

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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Medium Neutral Citation:	R v TOYER (NO 2) [2021] NSWDC 92
Hearing dates:	29 March 2021
Date of orders:	29 March 2021
Decision date:	29 March 2021
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Resentenced – see paragraphs [20]-[24]
Catchwords:	SENTENCING – penalties – Intensive Correction Orders not available to offence of manslaughter SENTENCING – non parole period – principles to be applied.
Legislation Cited:	Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10 R v Boney [2008] NSWCCA 313
Category:	Sentence
Parties:	Director of Public Prosecutions (The Crown) Rian Ross TOYER
Representation:	Counsel: Ms. V Morgan, Crown Prosecutor Mr M Dennis SC for the offender Solicitors: Mr A Thomas DPP Mr Z Tankard of Tankards Law for the offender
File Number(s):	2019/296012
Publication restriction:	No