R v Tozer - [2003] NSWCCA 72

CITATION: R v Tozer [2003] NSWCCA 72

HEARING DATE(S): 19 March 2003

JUDGMENT DATE:
27 March 2003

JUDGMENT OF: Studdert J at 1; Shaw J at 51

DECISION: Leave to appeal granted; appeal dismissed.

CATCHWORDS: Criminal law - appeal against sentence - two armed robberies - driving motor vehicle without consent - whether sentences excessive - application of Pearce v The Queen - consideration of parity - adequacy of discount for utilitarian features and remorse - necessity for R v Ellis allowance concerning sentence for earlier armed robbery.

LEGISLATION CITED: Crimes Act, ss 97(1), 154A
Criminal Appeal Act, s 6(3)

CASES CITED: Lowe v The Queen (1984) 154 CLR 606
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Ellis (1986) 6 NSWLR 603
R v Henry (1999) 46 NSWLR 346
R v Simpson (2001) 53 NSWLR 704
R v Thompson (2000) 49 NSWLR 383
R v Winchester 58 A Crim R 345
Ryan v The Queen (2001) 206 CLR 267

PARTIES :
Regina v James Reginald Tozer

FILE NUMBER(S): CCA 60360/02

COUNSEL: P.E. Ingram (Crown)
G.A. Bashir (Applicant)

SOLICITORS: S.E. O'Connor (Crown)
D.J. Humphreys (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/0063

LOWER COURT
JUDICIAL OFFICER : Bellear DCJ

60360/02

STUDDERT J
SHAW J
Thursday 27 March 2003

REGINA v JAMES REGINALD TOZER

Judgment

1 STUDDERT J: The applicant, James Reginald Tozer, pleaded guilty in the Local Court to two offences of robbery being armed with an offensive weapon and to an offence of driving a conveyance without consent. He adhered to those pleas when he appeared in the District Court.

2 His Honour Bellear DCJ sentenced the applicant on 30 May 2002 as follows: in relation to the earlier of the two offences of armed robbery committed on 15 December 2001, the applicant was sentenced to a fixed term of imprisonment of three years six months to commence on 18 December 2001 and to expire on 17 June 2005. In relation to the offence of driving a conveyance without consent on 18 December 2001, the applicant was sentenced to a fixed term of imprisonment of two years, again commencing on 18 December 2001 and to expire on 17 December 2003. In relation to the second offence of armed robbery committed on 18 December 2001, the applicant was sentenced to a term of imprisonment of five years six months to commence on 18 December 2003 and to expire on 17 June 2009. In respect of that offence his Honour fixed a non parole period of three years six months to commence on 18 December 2003 and to expire on 17 June 2007.

3 This means then that the first of the offences of armed robbery and the offence in relation to the motor vehicle were to be served concurrently and that the second of the offences of armed robbery was to be served cumulatively to the motor vehicle offence and partly concurrently and partly cumulatively in relation…

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 Tozer

Details

AGLC: R v Tozer [2003] NSWCCA 72
Case: [2003] NSWCCA 72
Decision Date: 27 March 2003

CaseChat Overview and Summary

In the matter of R v Tozer, the appellant sought to appeal against the severity of the sentences imposed for his involvement in two separate armed robberies, along with an additional charge of driving a motor vehicle without consent. The case was heard in the relevant appellate court, which was tasked with determining the fairness and proportionality of the sentences given the circumstances.

The primary legal issues addressed by the court involved whether the sentences imposed were excessive and whether they adequately reflected the principles of criminal sentencing. The court was required to consider the application of precedent, particularly in relation to the case of Pearce v The Queen, which deals with the principles of parity and the need for sentences to be commensurate with the crimes committed. Furthermore, the court examined whether the discount provided for the utilitarian features and the appellant's remorse was appropriate, as well as the necessity of applying the allowance from R v Ellis concerning the sentencing for the earlier armed robbery.

The court carefully evaluated the sentences, considering the overall circumstances of the case and the need to ensure they were just and proportionate. The court found that while the sentences were severe, they were not excessive when viewed in the context of the crimes committed and the principles established in Pearce v The Queen. The discount for utilitarian features and remorse was deemed adequate, and the court considered the need to maintain consistency in sentencing for similar offences. The final decision recognised the necessity of the allowance from R v Ellis, which was appropriately applied in this instance.

The appeal was ultimately dismissed, with the court affirming that the sentences were proportionate and reflective of the seriousness of the offences. The court emphasised the importance of maintaining a balanced approach to sentencing, taking into account the principles of parity and the specific circumstances of each case.

Orders