Toller v R

Case [2021] NSWCCA 204


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Toller v R [2021] NSWCCA 204
Hearing dates: 28 July 2021
Date of orders: 27 August 2021
Decision date: 27 August 2021
Before: Macfarlan JA at [1]
Davies J at [2]
Beech-Jones J at [3]
Decision:

Application for leave to appeal refused

Catchwords:

SENTENCING – fraud offences – whether effect of pandemic restrictions imposed after sentence can be considered – leave to appeal refused.

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Betts v R (2016) 258 CLR 240; [2016] HCA 25

Borg v R; Gray v R [2020] NSWCCA 67

Cabezuela v R [2020] NSWCCA 107

Hoang v R [2020] NSWCCA 324

House v The King (1936) 55 CLR 499

Kentwell v R (2014) 252 CLR 601; [2014] HCA 37

R v Munday (1981) 2 NSWLR 177

Rae v R [2019] NSWCCA 284

Category:Principal judgment
Parties: Edward Charles Toller (Applicant)
Regina (Crown)
Representation:

Counsel:
In person (Applicant)
Ms C Dodds (Crown)

Solicitors:
Unrepresented (Applicant)
Director of Public Prosecutions (Crown)
File Number(s): 2017/192803
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
24 April 2018
Before:
Norrish QC DCJ
File Number(s):
2017/192803

Judgment

  1. MACFARLAN JA: I agree with Beech-Jones J.

  2. DAVIES J: I agree with Beech-Jones J.

  3. BEECH-JONES J: This is an application for leave to appeal against the sentence imposed on the applicant on 24 April 2018 in the District Court for a number of fraud offences.

  4. The applicant pleaded guilty to 14 charges of obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900. The maximum penalty for each offence is 10 years imprisonment. There is no standard non‑parole period.

  5. His Honour Judge Norrish QC sentenced the applicant to an aggregate term of imprisonment of 8 years with a non-parole period of 5 years commencing on 27 June 2017. The non-parole period expires on 26 June 2022. Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999, his Honour specified the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. Those indicative sentences ranged between 12 months’ imprisonment and 4 years’ imprisonment. Broadly, the difference in the indicative sentences appears to have been largely referable to the value of the financial benefit that was obtained for each offence. For example, sequence 2 involved an elderly investor who provided $400,000 to the applicant which was completely lost. The indicative sentence for that sequence was 4 years’ imprisonment. With sequences 7 and 8 the amounts defrauded were $10,600 and $15,000 respectively. Each of the indicative sentences for those offences was 12 months’ imprisonment.

Background

  1. As I will explain, the sole ground of appeal concerns the impact on the applicant of the conditions of his incarceration imposed as a result of the COVID-19 pandemic. In light of that complaint, it is only necessary to briefly describe the circumstances…

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Details
AGLC
Toller v R [2021] NSWCCA 204
Case
[2021] NSWCCA 204
Decision Date

CaseChat Overview and Summary

Toller was convicted of multiple counts of fraud and was sentenced to imprisonment before the imposition of COVID-19 restrictions. Toller applied for leave to appeal on the basis that the sentencing judge had not taken into account the impact of the restrictions on his sentence. The Court of Appeal held that the restrictions could not be considered as they were not in force at the time of sentencing. The Court dismissed the application for leave to appeal.

The central issue before the Court was whether the effect of the pandemic restrictions, which were imposed after the sentencing, could be considered by the trial judge. Toller argued that the restrictions effectively increased the severity of his sentence due to the additional difficulties he faced in serving his sentence. The Court considered whether the restrictions could be considered as a change in circumstances under section 25A of the Sentencing Act. The Court held that the restrictions could not be considered as they were not in force at the time of sentencing. The Court also held that the restrictions did not constitute a change in circumstances as they did not alter the fundamental nature of the sentence.

The Court held that the restrictions could not be considered as they were not in force at the time of sentencing. The Court noted that the trial judge had considered the impact of the pandemic on Toller’s ability to commit the offences but had not considered the impact of the restrictions on the severity of the sentence. However, the Court held that the restrictions could not be considered as they were not in force at the time of sentencing and did not alter the fundamental nature of the sentence. The Court also held that the restrictions did not constitute a change in circumstances under section 25A of the Sentencing Act as they did not alter the fundamental nature of the sentence.

The Court dismissed the application for leave to appeal. The Court held that the restrictions could not be considered as they were not in force at the time of sentencing and did not alter the fundamental nature of the sentence. The Court also held that the restrictions did not constitute a change in circumstances under section 25A of the Sentencing Act.

Orders

Orders of the court

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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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