R v Bushell; R v Tozer (No 21)

1. [1]

   The offenders, Daniel Michael Bushell and John Jamie Tozer, are before the court for sentence. They are each to be sentenced for one count of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 (NSW) (“Crimes Act”) for which the maximum penalty is 25 years imprisonment and for which there is no standard non-parole period.

2. [2]

   The manslaughter offending occurred between 11 and 13 February 2017. Mr Bushell and Mr Tozer were 42 and 31 years old respectively at the time of that offending. Mr Tozer pleaded guilty to manslaughter on 12 February 2025 (which the Crown accepted in full satisfaction of the indictment) and Mr Bushell pleaded guilty on 4 April 2025.

3. [3]

   Mr Bushell is also to be sentenced for three counts of drug related offending as follows:-

   1. (1)

      Count 1: between 26 and 29 April 2017, supply large commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DMT Act”);

   2. (2)

      Count 2: between 13 January 2017 and 28 April 2017, manufacture large commercial quantity of methylamphetamine contrary to s 24(2) of the DMT Act;

   3. (3)

      Count 3: between 13 January and 28 April 2017, supply large commercial quantity of 3,4-methylenedioxymethylamphetamine (“MDA”) contrary to s 25(2) of the DMT Act.

4. [4]

   Each of these offences carries a maximum penalty of life imprisonment, a fine of 5,000 penalty units or both. They each have a standard non-parole period of 15 years imprisonment.

5. [5]

   There is an additional offence of possession of a precursor intended for use in the manufacture of a prohibited drug contrary to s 24A(1)(a) of the DMT Act, namely one kilogram of ephedrine, attaching to count 2, which Mr Bushell asks me to take into account on a Form 1.

6. [6]

   The timing of Mr Bushell’s pleas of guilty to the drug offences is addressed in the procedural history below. Mr Tozer was charged with an identical set of drug offences and was sentenced by Flannery SC DCJ on 3 March 2024, to which see below.

7. [7]

   I am grateful to Mr Taylor who appeared on behalf of the Crown, to Mr Djemal SC who appeared on behalf of Mr Tozer and to Mr Quilter and Ms Feiner who appeared on behalf of Mr Bushell for the collaborative and efficient manner in which they conducted the proceedings.

Procedural History

1. [8]

   These proceedings have a significantly protracted history which I briefly set out to establish the context in which these sentence proceedings took place.

2. [9]

   On 28 April 2017 Mr Bushell was arrested and charged with the drug offences. On 7 March 2018 Mr Tozer was arrested and charged with the drug offences. The indictments for the drug offending have taken various forms but for present purposes, they are identical as between each offender (including the Form 1 offence).

3. [10]

   On 26 July 2018, the offenders were charged with the murder of Ricky Ciano (“the deceased”).

4. [11]

   In 2019, Mr Bushell entered a plea of guilty to Count 1 of the drug offences. On 6 March 2020, Mr Bushell entered pleas of guilty in relation to the remaining drug offences on his indictment. On 9 March 2020, Mr Tozer was arraigned and pleaded guilty to all counts on the drug offences indictment. The sentence hearings for the drug offences were repeatedly adjourned in order to follow the outcome of the proceedings in relation to the death of the deceased.

5. [12]

   Those proceedings were committed to the Supreme Court on 7 September 2020 and listed for trial commencing 15 June 2021. Pre-trial argument commenced on that date before Johnson J, following which the joint trial was listed to commence on 19 July 2021. On 25 June 2021, the trial was vacated as a result of the worsening of the COVID-19 pandemic. The trial was relisted to commence on 11 July 2022.

6. [13]

   On 8 April 2022, the Crown served a statement from a new witness (“Witness E”) which went exclusively to the case against Mr Tozer. RA Hulme J refused an application to exclude that evidence but vacated the trial. It was relisted to commence on 6 March 2023, but that date was also vacated due to the unavailability of Mr Tozer’s legal representatives. The trial was relisted again to commence on 24 July 2023.

7. [14]

   The joint trial commenced on 24 July 2023. However, during the trial, a joint application was made to have Mr Tozer’s trial aborted on the basis of the lack of adequate disclosure with respect to Witness E. The trial was vacated with respect to Mr Tozer, but it continued with respect to Mr Bushell. Mr Bushell was acquitted of murder but convicted of manslaughter.

8. [15]

   On 8 March 2024, Flannery SC DCJ sentenced Mr Tozer with respect to the drug offending.

9. [16]

   On 26 February 2025, an appeal was heard by the Court of Criminal Appeal with respect to Mr Bushell’s conviction of manslaughter. On that day the Court quashed the manslaughter conviction and ordered a retrial on manslaughter alone. Immediately thereafter, Mr Bushell entered negotiations with the Crown with a view to pleading guilty to manslaughter on agreed facts.

10. [17]

    On 12 February 2025, Mr Tozer entered a plea of not guilty to murder but guilty to manslaughter, which the Crown accepted in full satisfaction of the indictment.

Agreed Facts

1. [18]

   Four sets of agreed facts were tendered in relation to the manslaughter: first, two sets of facts agreed for the purpose of sentencing (“the sentencing facts”) and second, two sets of agreed facts of a formal and uncontroversial nature which had been tendered pursuant to s 191 of the Evidence Act 1995 (NSW) to shorten the joint trial (“the s 191 facts”). The s 191 facts for Mr Bushell and Mr Tozer are identical. The two sets of sentencing facts contain minor differences. The following summary is extracted from all of the agreed facts before me. I have noted where there are differences between Mr Bushell’s and Mr Tozer’s sentencing facts. I am indebted to the Crown for providing me with a schedule setting out those differences.

2. [19]

   The deceased was born in 1981.

3. [20]

   In 2015, the deceased commenced a relationship with Rachel and they soon married. In or about April 2015, the deceased and Rachel moved into a home on the Central Coast of NSW. In early 2016, they moved to the Gold Coast in Queensland. Despite living on the Gold Coast, the deceased maintained a relationship with his daughter CI. He travelled to Sydney most weekends to see her. When he travelled to Sydney, the deceased would stay at his premises in Waitara (“the Waitara premises”).

4. [21]

   A person referred to in these remarks as “Witness A” met the deceased through an associate in about 2009. The deceased employed Witness A as a driver. Up until the deceased’s death, Witness A collected, stored and delivered prohibited drugs, money and other items connected with criminal activity on behalf of the deceased.

5. [22]

   In about early February 2017, the deceased directed Witness A to travel to an address in Rosehill to collect drug manufacturing equipment. The deceased also directed him to hire a van to transport that equipment to Oberon. The deceased and the offenders planned to meet at a residential address in Oberon (“the Oberon premises”) to engage in the manufacture of prohibited drugs on the following weekend. The deceased told his wife that he would not be back until Monday 13 February 2017.

6. [23]

   On Friday 10 February 2017, the deceased travelled from the Gold Coast to Sydney. He arrived in Sydney at 2.35pm and drove his vehicle, a white BMW (“the BMW”), to the Waitara premises. On the same afternoon, Witness A arranged for a van hire and placed something inside the mailbox at those premises. The deceased retrieved an item from the mailbox shortly thereafter.

7. [24]

   On Saturday, 11 February 2017 at 8.18am, the deceased sent a message to his wife via a Blackberry mobile phone which read, “Hey bubba, I’m on this if ya need me!”. At 9.14am, he left the Waitara premises in the BMW. At 9.28am, he asked his wife for the address of Supercheap Auto in Penrith which she then provided to him.

8. [25]

   At 10.49am, the deceased arrived at the Penrith Homemaker Centre and at 11.01am he purchased a number of items from Supercheap Auto, including silicon repair tape, hose clamps and a fuel hose. At 11.09am, he purchased a Laser Portable DVD Player from Bing Lee. At 11.11am, he purchased ten DVD movies from JB HiFi.

9. [26]

   While the deceased was travelling to the Penrith Homemaker Centre and making those purchases, Witness A drove the van toward Oberon and arrived there at 10.36am.

10. [27]

    On the same morning, the offenders drove a red Toyota Corolla (“the Toyota”) toward Oberon. Witness A met the offenders near Oberon in the afternoon and they then drove to the Oberon premises. They unloaded the equipment that was inside the van and placed it in a room to the right of the front door. They then messaged the deceased to see where he was.

11. [28]

    While making his way to the Oberon premises, the deceased was stopped by police. He was subject to a breath test which returned a negative result. Police issued the deceased with a Notice of Drivers Licence Suspension as the deceased’s NSW driving privileges had been withdrawn on 26 August 2016. The deceased initially complied with the police officer’s direction to park the BMW around the corner and to arrange for someone to collect him.

12. [29]

    The deceased waited for a period of time before continuing his journey west but had trouble finding the Oberon premises.

13. [30]

    The deceased told the offenders and Witness A about the police stop and his difficulty locating them. Witness A and Mr Tozer drove the van to Lithgow to meet him. After they met the deceased, Witness A and the deceased swapped cars due to the earlier police stop. The deceased and Mr Tozer drove back to the Oberon premises together. Witness A left them and returned to Sydney in the BMW.

14. [31]

    At some stage during the night of 11 February 2017 or the early hours of 12 February 2017, the deceased died as a result of the intravenous administration of prohibited drugs, being a mixture of cocaine and heroin (“speedball”), by Mr Bushell.

15. [32]

    The Crown cannot establish beyond reasonable doubt, and therefore does not contend, that the deceased did not consent to the injection. In Mr Bushell’s sentencing facts only, it was noted that the Crown would oppose any finding of fact that, on the balance of probabilities, the deceased consented to the injection. At the hearing, and as set out below, the Crown opposed that finding in both offenders’ cases.

16. [33]

    It was agreed that matters indicating that the deceased did not consent to the intravenous administration of prohibited drugs include:-

17. [34]

    In relation to Mr Bushell only, there was an additional agreed matter which indicated the deceased did not consent to the intravenous administration of prohibited drugs: that he maintained a close relationship with his daughter, and that he travelled to Sydney most weekends to see her.

18. [35]

    It was agreed that matters indicating the deceased consented to the intravenous administration include:-

19. [36]

    Mr Tozer asked Witness A to see him.

20. [37]

    Witness A met Mr Tozer and Mr Bushell at residential premises in Ropes Crossing (“the Ropes Crossing premises”). Mr Tozer told Witness A a version of events consistent with the deceased’s death being an accidental overdose and that he tried to administer CPR to the deceased. It was agreed between the parties that the utterances of Mr Tozer to Witness A in this regard were not proof as to the truth of those utterances.

21. [38]

    Witness A (at the request of Mr Tozer) and Mr Bushell drove back to the Oberon premises to move the deceased’s body to a place where it would be found. Witness A did not ever pick up the equipment.

22. [39]

    Witness A told police that if he had seen anything at the property that indicated anything other than an overdose, he would have left the property and telephoned police.

23. [40]

    The level of detail in relation to the events surrounding the moving of the deceased’s body differs between Mr Bushell’s and Mr Tozer’s sentencing facts as follows:-

    1. (1)

       When Witness A and Mr Bushell entered the Oberon premises, the drug manufacturing equipment remained assembled. The pipes were connected and there was a gas burner and a gas bottle.

    2. (2)

       Witness A followed Mr Bushell into a room containing a mattress on the floor. The deceased’s body was lying on the mattress, with his head facing toward the door. The deceased was wearing a pair of shorts and underwear.

    3. (3)

       Witness A and Mr Bushell walked outside and opened the doors of the BMW. They returned inside and picked up the body of the deceased. Witness A held the deceased by the ankles and Mr Bushell held him under the arms. They carried him to the BMW.

    4. (4)

       They were eventually able to place the body of the deceased into the back seat of the BMW. During that process, Mr Bushell hit his head on the top of the passenger seat with sufficient force to cause bleeding. A few droplets of his blood fell onto the shorts worn by the deceased. Mr Bushell was concerned about his blood being identified, so he removed the deceased’s shorts and told Witness A to burn them, which he later did.

    5. (5)

       Mr Bushell drove the BMW containing the deceased, and Witness A drove the van, to Duckmaloi Road and pulled over at a clearing. Mr Bushell exited the BMW and wiped the car down with a cloth to remove any fingerprints. He then got into the passenger seat of the van and Witness A drove back to Ropes Crossing.

    6. (6)

       Mr Bushell and Witness A moved the deceased into the BMW and left the vehicle at Duckmaloi Road, so that it would be found.

24. [41]

    By Monday 13 February 2017, the deceased’s wife had still not heard from him and she tried to contact Mr Tozer about the deceased’s whereabouts.

25. [42]

    At 5.20pm, Mr Tozer messaged the deceased’s wife: “…I’m worried as well I’m running around trying to see a couple of people I’m sure he is fine …”. During this messaging, the deceased’s wife asked Mr Tozer if he knew from where the deceased was getting his painkillers.

26. [43]

    On 14 February 2017, the deceased’s wife flew to Sydney and met with Mr Tozer. He told her that he did not know where the deceased was, but he asked her to prepare for the worst.

27. [44]

    Also on that day, the body of the deceased was discovered in the BMW parked on the side of Duckmaloi Road. Police observed the deceased’s body in the back seat, an uncapped syringe in the rear footwell behind the driver’s seat, as well as a prescription container which contained oxycodone tablets, and a black cap. The deceased’s wife was informed of his death that evening.

28. [45]

    At about 10.30am on 15 February 2017, police spoke to Mr Tozer about the deceased being missing.

29. [46]

    Mr Tozer told police that he had not spoken to the deceased in four days and he was concerned that something had happened to him. He told police that he had no knowledge of what had happened to the deceased.

30. [47]

    Mr Tozer also told police that in the last few months the deceased had been using heroin after becoming addicted to pain killers after a back injury. It was agreed between the parties that the utterances of Mr Tozer in this regard were not proof as to the truth of those utterances.

31. [48]

    In relation to Mr Bushell only, it was an agreed fact that at about 1.00pm on 17 February, police attended a residential premises and spoke to him. Police asked him if he knew the deceased to which he replied “No” and “I don’t talk to cops”, before closing the door. Police then left.

32. [49]

    The deceased was examined by a forensic pathologist, Dr Brian Beer, on 17 February 2017. Dr Beer determined that the deceased died from mixed drug overdose as a result of heroin and cocaine (“+/- possible background effects of alprazolam and oxycodone”).

33. [50]

    Dr Beer examined the body and located a single injection site in the left inner elbow. No other injection sites were identified.

34. [51]

    Dr Beer located three Targin tablets in the deceased’s stomach contents, along with a few residual food fragments.

35. [52]

    No other abnormalities were located during the course of the examination.

36. [53]

    Forensic pharmacologist, Mr Farrar, also expressed an opinion that the deceased died as a consequence of multiple drug toxicity shortly after the administration of cocaine and heroin. It is probable that his survival time was up to 30 minutes.

37. [54]

    On 26 July 2018, Mr Tozer and Mr Bushell were arrested in relation to the murder of the deceased. They each exercised their right to silence in response to a police invitation to participate in a recorded interview.

38. [55]

    The criminal liability of the offenders is on the following basis:-

    1. (1)

       The death of the deceased was caused by the unlawful act of Mr Tozer’s half-brother, Mr Bushell;

    2. (2)

       The unlawful act was the intravenous administration of prohibited drugs by Mr Bushell to the deceased;

    3. (3)

       The act was unlawful by virtue of s 13 of the DMT Act. That section prohibits a person administering or attempting to administer a prohibited drug to another person and is a summary offence;

    4. (4)

       Mr Tozer (as an accessory at the fact) was present and gave assistance to Mr Bushell (as the principal) to commit the unlawful act. That assistance was in the form of providing the prohibited drugs to Mr Bushell (for the deceased);

    5. (5)

       The act was dangerous in that each offender realised it exposed the deceased to a risk of serious harm insofar as:

    6. (6)

       The Crown cannot establish beyond reasonable doubt that the deceased was sedated at the time of the injection;

    7. (7)

       The Crown cannot establish beyond reasonable doubt that the deceased did not consent to the administration of drugs.

39. [56]

    Mr Tozer was sentenced for the drug offences by Flannery SC DCJ on 8 March 2024. The agreed facts for the drug offences were tendered only with respect to Mr Bushell’s matter. They are, relevantly, as follows.

40. [57]

    In January 2017, Hagop Kupelian (also known as Jake) met Mr Tozer, who told Mr Kupelian that he would be Mr Tozer’s driver.

41. [58]

    Through the lawful interception of Mr Kupelian’s telephone service, police ascertained that he had travelled to Queensland on 4 and 20 April 2017.

42. [59]

    On 23 April 2017, Mr Tozer contacted Mr Kupelian in relation to organising a trip to Queensland.

43. [60]

    On 27 April 2017, Mr Kupelian had a conversation with his brother about a trip to Queensland. Mr Kupelian indicated that he would be leaving at about 8.00pm, going directly to Queensland and returning.

44. [61]

    Earlier that day, Mr Kupelian had a number of exchanges with Mr Tozer making arrangements for Mr Kupelian to courier drugs for him via SMS, the substance of which included:-

45. [62]

    Mr Tozer also told Mr Kupelian that he was Mr Tozer’s full-time driver.

46. [63]

    Also on that day, Mr Bushell purchased new “Sistema” brand plastic containers and brought them to the Ropes Crossing premises. That evening, Mr Bushell left the Ropes Crossing premises holding a green “enviro” shopping bag, travelled to a unit at Lethbridge Park (“the Lethbridge Park premises”) and met Mr Kupelian there. When he arrived, Mr Bushell filled up the “Sistema” plastic containers with approximately 2 kilograms of methylamphetamine.

47. [64]

    Whilst Mr Kupelian was at the address, he had further exchanges with Mr Tozer via SMS, the substance of which included:-

48. [65]

    Mr Bushell and Mr Kupelian exited the unit and placed the containers in the rear of Mr Kupelian’s vehicle. Mr Kupelian drove Mr Bushell to the Ropes Crossing premises. Once they arrived, Mr Bushell entered the house and obtained money to pay Mr Kupelian. He gave him $800 as part payment for the drug delivery.

49. [66]

    Mr Kupelian then picked up Mr Aaron Barnsley and began driving to Queensland to make the delivery.

50. [67]

    At about 2.10am on 28 April 2017, police stopped Mr Kupelian’s vehicle near Taree. Police searched the vehicle and located a green “enviro” bag in the footwell behind the driver’s seat. Inside the bag were three resealable style clear containers. Two were of similar size and appeared to be “Sistema” brand, and the other was a larger “Décor” brand container. Each container contained an off-white crystalline substance and they were later analysed to contain a total of 1.928 kilograms of methylamphetamine (518 grams at 74.5% purity, 439 grams at 75.5% purity and 971 grams at 59% purity – a total weight of 1.928 kilograms). Mr Bushell’s fingerprint was located on the base of one of the containers, and his DNA could not be excluded from a wet trace swab mixture from the latches of two of the containers.

51. [68]

    The men were told they were free to leave pending further investigation, but an operational decision was later made to stop the vehicle and arrest them. They were arrested at about 4.00am and conveyed to Taree police station.

52. [69]

    Mr Kupelian participated in an interview and made the following admissions:

53. [70]

    At about 6.20pm on 28 April 2017, police executed a search warrant at the Lethbridge Park premises, which consisted of a two-bedroom unit located on the first floor of a multi-storey residential unit block. At the time of the search, there were other residential units which were occupied both above and next to the premises.

54. [71]

    The unit was untidy and had a strong chemical smell. Bedroom 1 contained a clandestine laboratory with chemistry apparatus, trays, woks, chemicals and items consistent with drug manufacture. There were two makeshift benches constructed out of timber boards sitting on buckets and gas bottles. The electrical power point was turned on and was powering a fan.

55. [72]

    The unit was analysed by a forensic chemist, who found deposits of methylamphetamine on a number of items including foil cooking trays, a portable gas stove, sieves, glass jugs, plastic containers, an electric wok, personal protective equipment and other items associated with the manufacture of methylamphetamine. It is accepted that the total amount of methylamphetamine manufactured was 1.4442 kilograms, with remaining amounts being waste product.

56. [73]

    DNA recovered from various gloves which were found at the Lethbridge Park premises was greater than 100 billion times more likely to be Mr Bushell’s than an unknown, unrelated individual in the Australian population.

57. [74]

    In addition to the methylamphetamine located at the Lethbridge Park premises, police located 2.80522 kilograms of MDA. There was no evidence to indicate that the MDA was manufactured at the Lethbridge Park premises.

58. [75]

    A resealable plastic bag was also located at the Lethbridge Park premises which contained 1004.4 grams of a cream powder containing 78% ephedrine (783 grams).

59. [76]

    At about 7.30pm on 28 April 2017, police arrested Mr Bushell and conveyed him to the Mt Druitt police station.

60. [77]

    Mr Kupelian made further statements to police which indicated that he was solely instructed by Mr Tozer in relation to his involvement in the offending, who arranged for motor vehicles, a Blackberry, the purchase of hydrochloric acid and acetone and the collection and delivery of cash.

61. [78]

    During a lawfully recorded conversation with his cellmate at a correctional centre in December 2017, Mr Bushell spoke about “ice” and said that he wished he knew his cellmate on the outside, as he was making “2 kilo a week” and then “distributing it”. He said they were “passing out kilos” and “distributing in trips to Queensland”, stating that they would have “drivers with two ‘keys’”. He made other statements relating to the nature and amount of various substances at the Lethbridge Park premises.

Exhibits

1. [79]

   It was agreed between the parties that to the extent evidence was relevant in Mr Bushell’s case, it was admitted in Mr Tozer’s and vice-versa.

2. [80]

   In relation to Mr Bushell’s matter, the following documents were tendered:-

   1. (1)

      Exhibit 1: Crown sentence bundle, containing the following items:-

   2. (2)

      Exhibit 2: Mr Bushell’s sentence bundle, containing two reports of Dr Richard Furst dated 7 February 2021 and 27 March 2025. Dr Furst was not required for cross-examination.

   3. (3)

      Exhibit 3: report of Professor Susan Nielsen, pharmacist, which formed part of Mr Tozer’s sentence bundle noted below. Dr Neilsen was not required for cross-examination.

3. [81]

   In addition, an affidavit of Mr Bushell’s solicitor Benjamin Jamieson sworn on 2 April 2025 was read without objection.

4. [82]

   With respect to Mr Tozer’s matter, the following documents were tendered:-

   1. (1)

      Exhibit A: Crown sentence bundle, containing the following items:-

   2. (2)

      Exhibit B: Mr Tozer’s sentence bundle, containing the following items:-

Evidence in Mr Bushell’s case

1. [83]

   Mr Bushell’s criminal history includes a great number of offences of relatively low seriousness, including driving offences, assault, drug possession and property (and similar) offences. I note that Mr Bushell was not convicted of any offence committed between 2005 and 2015. A number of instances of minor misconduct are recorded in his custodial history.

2. [84]

   The Crown tendered the material that was before Flannery SC DCJ when her Honour sentenced Mr Tozer for the drug offences. Her sentencing remarks of 8 March 2024 reveal the following:-

   1. (1)

      The proceedings against Mr Tozer were commenced prior to the introduction of s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) and the relevant law in determining the discount for the utilitarian value of the pleas of guilty was what was said by the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 (“Thomson and Houlton”) and R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 (“Borkowski”). Those cases make it clear that the most significant matter in determining the appropriate discount is the timing of the pleas. Her Honour allowed a 20% reduction to reflect the utilitarian value of the pleas to each sequence.

   2. (2)

      It was difficult to determine Mr Tozer’s role in the offending, although her Honour was satisfied that he was not the principal but rather a trusted participant who directed at least Mr Kupelian. He was involved in the manufacture in a hands on way. Her Honour found that each offence fell below the middle of the range of objective seriousness, but not appreciably so.

   3. (3)

      Mr Tozer had a criminal record that did not entitle him to leniency.

   4. (4)

      Mr Tozer was regularly assaulted by his father. After his parents separated, he chose to live with his father as he lived in a party house which gave him more freedom and access to illicit drugs. He had difficulty reading and writing. His son had cerebral palsy. He had a serious history of substance abuse which commenced when he was 11 years of age. He was sexually abused at age 17 in juvenile detention and was pursuing a civil claim. He has post-traumatic stress disorder (PTSD) as a result of those experiences. He has developed myocarditis as a result of COVID-19 which he contracted in custody. He had been abstinent from drugs for about 15 months and was attending programs in custody.

   5. (5)

      Mr Tozer’s moral culpability was reduced on account of his early exposure to violence, substance abuse and sexual abuse.

   6. (6)

      Mr Tozer had accepted responsibility for his offending and he had reasonable prospects of rehabilitation.

   7. (7)

      He had a lengthy period on remand when he endured lockdowns and restrictions in visits and phone calls.

   8. (8)

      Mr Tozer’s time in custody was more onerous because of his PTSD, his myocarditis and the delays he had experienced in seeing appropriate specialists.

   9. (9)

      Her Honour found special circumstances. She found that whilst general deterrence was of some importance, it has less of a role to play having regard to Mr Tozer’s background of significant disadvantage.

   10. (10)

       Her Honour imposed an aggregate sentence of 9 years with a non-parole period of 5 years 9 months, being a ratio of 63.8%. With respect to count 1, her Honour gave an indicative sentence of 7.5 years (apparently discounted from 9 years and 4 months). With respect to count 2, taking into account the Form 1, her Honour gave an indicative sentence of 8 years (apparently discounted from 10 years). With respect to count 3, her Honour gave an indicative sentence of 7 years (apparently discounted from 8 years and 9 months). The sentence commenced on 7 March 2018 and the non-parole period expired on 6 December 2023.

3. [85]

   Dr Furst’s first report, prepared in anticipation of a sentence for the drug offences (which did not occur) set out at length Mr Bushell’s antecedents and personal history preceding the offences. Dr Furst assessed Mr Bushell for approximately an hour via audio visual link (AVL). Mr Bushell, who was born in 1974, had a daughter who was 10 years old at the date of the report and lived at Taree. He was in receipt of a Disability Support Pension for approximately 15 years prior to his arrest in 2017 due to his mental illness and low level of psychosocial and occupational function.

4. [86]

   Mr Bushell was born in Victoria and his parents separated when he was 3 years old. As his father lived in Victoria, he moved between his mother in New South Wales and his father in Victoria on a regular basis and became homeless at various times throughout his adolescence. He spent time in boys’ homes. He experienced many difficulties at school at both primary and secondary levels, and left halfway through year 10 at the age of 16. Dr Furst noted that his parents were prone to drug abuse or addiction.

5. [87]

   Mr Bushell began to use cannabis on a regular basis from 15 or 16 years of age and continued until his early 20s. From the age of 23 or 24 years, he began to use amphetamines and heroin. It appears that this escalated (at the very least, in the period immediately prior to the offending) to using approximately 1-2 grams of methylamphetamine and 0.5-1 grams of heroin per day.

6. [88]

   Mr Bushell first developed symptoms of a psychotic illness in his mid to late teens and was diagnosed with schizophrenia at the age of 17. He had bouts of psychosis in his early to mid-20s including hearing voices, believing that programs on television were talking about him in a personal way and paranoid thinking and/or delusions, which lasted until his 30s. He was admitted to hospital for psychiatric symptoms twice in about 2010. He was prescribed antipsychotic medication and later an antidepressant. He struggled with a daily routine and lacked capacity to work as an adult, which Dr Furst believes is indicative of the functional impairment seen in people with schizophrenia. He has spent a significant amount of time either homeless or in custody. He has developed a tremor suggestive of Parkinson’s Disease and has a history of chronic backpain. He was prescribed antidepressant and antipsychotic medication.

7. [89]

   Mr Bushell had a significant relationship with a woman who was his intimate partner and carer from the early 2000s onwards. She was in receipt of a Carer’s Pension at the time and she assisted Mr Bushell with taking his antipsychotic medication and Methadone, which helped him stay out of trouble. She gave birth to their daughter in or around 2010 or 2011. She tragically died of a drug overdose in 2013 and his schizophrenic illness and drug addiction were exacerbated thereafter. He commenced a relationship with another woman in about 2014 who appears to have been a more negative influence, as they were both using drugs during the period of their relationship (and Mr Bushell said that his shoplifting and break and enter offences were all related to his addiction to heroin and amphetamines).

8. [90]

   At the time of the offending, Mr Bushell’s immediate family unit appears to have been his mother and step-father (who is now deceased), his two half-siblings (one of whom is Mr Tozer) and his daughter. He was living with Mr Tozer and was not taking any prescribed psychotropic or antipsychotic medication in the period preceding his arrest in 2017.

9. [91]

   On examination, Dr Furst found Mr Bushell to be concrete and simple in manner. He still heard voices of “demons” and “angels”. Justice Health records noted continuing positive symptoms (both hallucinations and delusions) of his schizophrenic illness.

10. [92]

    In Dr Furst’s opinion, Mr Bushell met the criteria for schizophrenia and substance use disorder. Dr Furst noted that schizophrenia is characterised by distortions in thinking, perception, emotions, language, sense of self and behaviour and prominent mood symptoms. Substance use disorder was characterised by excessive habitual use of drugs of abuse, often associated with psychological dependence on illicit drugs, patterns of tolerance to increasing amounts of drugs to achieve the same effect, difficulty controlling the use of drugs, failed attempts to stop using drugs and ongoing use despite the harmful consequences.

11. [93]

    Dr Furst was of the view that Mr Bushell’s schizophrenia has resulted in chronic psychosocial and occupational functional impairment, which were more stable when his late partner was taking care of him. He observed that the available history indicates that Mr Bushell was a slow learner at school, and that he had significant social disruption in his childhood consistent with abuse and/or neglect that amounts to a background of deprivation. He has a chronic psychotic illness which had its onset in early adolescence. In Dr Furst’s view, Mr Tozer was the primary offender in the drug offending and Mr Bushell acquiesced to his brother’s requests.

12. [94]

    Dr Furst noted that there was no suggestion that Mr Bushell’s offending was directly driven by the schizophrenic illness. However, Dr Furst observed that people with schizophrenia, especially when the illness has been present for many years, typically have impairment in cognitive function/frontal-executive function, including deficits in planning, decision making, abstract thinking and organisational skills. Further he stated:-

13. [95]

    The relevance of these deficits, in Dr Furst’s view, is that they made Mr Bushell more vulnerable to the potential influence of Mr Tozer and less concerned about the potential consequences of his offending actions. Other factors that probably exacerbated his schizophrenic illness and likely had further detrimental effects on his level of cognitive function were that he had no alternative stable or supported accommodation, that he was not taking antipsychotic medication and that he was using relatively large amounts of ice and/or heroin on most days. In Dr Furst’s opinion Mr Bushell’s drug addiction and unstable social circumstances were motivations for his offending independent of his schizophrenia.

14. [96]

    Whilst Mr Bushell remains in custody, Dr Furst recommended that he:-

    1. (1)

       Remain under the care of the psychiatric services of Justice Health, with regular psychiatric reviews and the prescription of antipsychotic medication;

    2. (2)

       Be referred to Statewide Disability Services to more accurately gauge the level of his cognitive deficits and intellectual function; and

    3. (3)

       Receive input from specialist drug and alcohol treatment providers to address his substance abuse problems and undergo assessment from a specialist for opiate substitution therapy.

15. [97]

    Once Mr Bushell returns to the community, Dr Furst recommended:-

    1. (1)

       Stable accommodation which will likely require welfare input (which I take to be a reference to government assistance);

    2. (2)

       Ongoing assertive treatment with antipsychotic medication and regular psychiatric reviews, together with drug and alcohol counselling or specialist drug and alcohol treatment;

    3. (3)

       Case management and assertive psychiatric follow-up through a local community mental health service;

    4. (4)

       Referral to local drug and alcohol treatment service; and

    5. (5)

       Vocational, social or other therapeutic interventions as indicated.

16. [98]

    Dr Furst considered that Mr Bushell was a vulnerable inmate as a result of his schizophrenia because of his likely exposure to violent incidents, increased anxiety and the destabilisation of his mental condition.

17. [99]

    Mr Bushell’s prognosis was such that he was likely to remain functionally impaired by his schizophrenic illness and his low level of cognitive and psychosocial function, but measures aimed at maintaining abstinence from drugs of abuse would improve his prognosis over the longer term.

18. [100]

    Dr Furst assessed Mr Bushell for 50 minutes by AVL in March 2025. Mr Bushell had at this point been in custody for 8 years. Dr Furst recorded that Mr Bushell indicated that he had not suffered from any periods of severe depression or elevated mood over the last several years, and that he no longer feels paranoid and only hears “muffled voices” every two or three months. He reported that he was not using (illicit) drugs and was compliant with his medication regime, including monthly buprenorphine injections, and wants to remain compliant. He sees mental health and specialist drug and alcohol staff working for Justice Health as required. Dr Furst observed that Mr Bushell’s mental health had significantly improved over the last several years. Mr Bushell has impaired glucose tolerance and has struggled with an infected ulcer in his leg for two years. He complained that the dressings were not being changed often enough.

19. [101]

    Mr Bushell told Dr Furst that he is in regular contact with his family and feels supported by them, including his mother and sister. When released from custody, Dr Furst noted that Mr Bushell wished to spend a week with his mother before moving up the coast to work with his sister’s boyfriend in a labouring position.

20. [102]

    Dr Furst noted that, in addition to his earlier diagnoses, Mr Bushell may have a borderline intellectual disability or a mild intellectual disability. His treatment recommendations and his view as to the impact of a custodial sentence remained the same as those in his earlier report. Dr Furst observed that Mr Bushell’s prognosis has likely improved based on his current attitude and ongoing self-reflection. Dr Furst has greater confidence that Mr Bushell will engage in the recommended treatment programs and avoid using drugs in the community.

21. [103]

    Dr Furst was specifically asked to comment on remorse and the causative impacts of any mental health conditions on the manslaughter.

22. [104]

    In relation to remorse, Dr Furst recorded that Mr Bushell “takes responsibility for his unlawful actions” and that he said:-

23. [105]

    Mr Bushell said that the deceased was his brother’s friend and that Mr Tozer had tried CPR unsuccessfully in an attempt to bring the deceased back to life. Mr Bushell told Dr Furst that “serving time over the last 8 years has been a ‘big wake up call’ for him”, and that he is aware of the harmful effects of drugs and addiction on the community. Dr Furst recorded that Mr Bushell said that he has no desire to use drugs again and does not want to be involved in drug supply or manufacturing.

24. [106]

    With respect to the causation issue, Dr Furst said that Mr Bushell’s poorly controlled and chronic schizophrenic illness, coupled with his low level of intellectual function, had an adverse effect on his judgement and his decision making when he injected the mixture of heroin and cocaine into the deceased. Dr Furst observed:-

25. [107]

    Professor Suzanne Neilsen, pharmacist, has a specialty in addiction and drugs of dependence.

26. [108]

    Professor Neilsen observed that opioids in the products OxyContin, Targin, Endone and Kapanol, which contain the active ingredients oxycodone or morphine, have an established capacity to produce dependence over a short period of time. She observed that in the USA, the current illicit opioid epidemic is now widely understood to have been driven by initial easy access, the overprescribing of opioids and policy changes which later reduced access to prescribed opioids, and made prescription opioids harder to inject, for example by the reformulation of oxycodone to a less-injectable, tamper-resistant product. She says that there is a growing body of research which demonstrates a common transition to heroin dependence after initially developing a dependence to prescription opioids. Her research demonstrates that in Australia, the reformulation of oxycodone to a less injectable form is associated with a shift to heroin. Since the reformulation there has been an increase in heroin overdoses and a decrease in opioid overdoses. Professor Neilsen notes that this finding is consistent with research in the USA.

27. [109]

    Problematic or dependent prescription opioid use can also be identified by shifting from oral consumption of tablets in ways that are intended (for example by swallowing a pill or capsule) to other methods of consumption that are not intended, such as crushing and/or snorting or injecting the contents of a controlled release pill.

28. [110]

    Professor Neilsen observes that as heroin is quickly metabolised to morphine in the body, the enduring psychoactive effect of heroin is predominantly due to morphine, which partly explains the similar propensity to cause addiction/dependence of morphine and heroin. Oxycodone has an abuse liability similar to that of heroin. Drug dependence is characterised by a range of behaviours such as escalating doses and using new routes of administration that maximise drug effects. Addiction to prescription opioids can present by, inter alia, using opioids in larger amounts over a longer period than intended and requiring higher doses to get a desired effect.

29. [111]

    In Professor Neilsen’s opinion, there is clear evidence of a pathway from prescription opioid use, and specifically oxycodone use, to heroin use. There are studies which show that a large number of patients seeking treatment for heroin use initiated their use of opioids by accessing pain medicines such as oxycodone. Opioid dependence is a recognised condition which exists with both oxycodone and heroin. There are a number of key similarities in the dependence between the two types of opioids. The same diagnostic criteria for dependence applies, and treatment responses, irrespective of the type of opioid taken, are the same.

30. [112]

    Professor Neilsen notes the deceased’s internet search set out at [35(n)] above. She observes that it includes a series of searches that appear to be gathering information on different formulations of oxycodone with a focus on Targin (which is an oxycodone/noloxone combination product) including the difference between Targin and OxyContin, different ways to administer oxycodone, searching for tablet identification descriptions that are consistent with Targin and seeking information on crushing Targin tablets, which is a process that may involve extracting oxycodone from the tablet. A later series of searches focused on Kapanol, which is a controlled release morphine product, and sought comparative information on oxycodone and morphine with respect to their euphoric effects. In Professor Neilsen’s opinion, the series of searches when taken as a whole, indicate that they were aimed at finding information about different aspects of prescription opioid use and effects, including how to administer them and which types of opioids produce the greatest euphoric effect.

31. [113]

    In Professor Neilsen’s opinion, there is a clear link between prescription opioid dependence and illicit opioid dependence, with the physical features of dependence on heroin and oxycodone or morphine being the same, and with one opioid being easy to substitute for another when one opioid becomes inaccessible.

32. [114]

    Mr Jamieson explains the delay that has occurred with respect to Mr Bushell’s sentencing. Mr Bushell pleaded guilty to count 1 on the drug indictment in 2019. He entered pleas of guilty in relation to the other counts on 6 March 2020, three days before his trial on the drug matters was to commence.

Evidence in Mr Tozer’s case

1. [115]

   Mr Tozer has a criminal history that is not as lengthy, but is more serious than that of Mr Bushell.

2. [116]

   Ms Cullen’s report sets out Mr Tozer’s family background, which I will relevantly summarise below.

3. [117]

   Mr Tozer is the youngest of two children born to his parents’ union. His sister has an extensive history of drug use. His father was an alcoholic and later substituted alcohol with illicit drugs. His mother regularly consumed alcohol, but Mr Tozer did not consider that she was an alcoholic as she was not abusing it.

4. [118]

   Mr Tozer’s childhood was marred by extreme and regular violence committed upon him, his sister and mother by his father. His father would chase them up the street and bash them. He recounted attending medical practitioners multiple times and lying about why he was attending, for example about why he had sustained “splits to the head” and associated periods of lost consciousness. He told Ms Cullen that there were not too many happy moments growing up.

5. [119]

   Mr Tozer’s parents separated when he was approximately 13 years old and he chose to live with his father as there was less supervision there and it was like a “party house”. This led to him leaving school in Year 9 and misusing drugs. He reported using cannabis, MDMA, speed and drinking alcohol at 15 years old. Ultimately, he was incarcerated at the age of 17 years.

6. [120]

   In the juvenile justice centre where he was held, Mr Tozer was sexually assaulted on at least four occasions by three different people. He attributed this as the reason why he has had issues with authority and why he joined a motorcycle gang (and Ms Cullen recorded that it further perpetuated his reliance on illicit drugs).

7. [121]

   Mr Tozer explained that he ceased contact with his father for five years when he was 20 years old because of his father’s drug use and violence toward his mother. They reconciled but their relationship remained strained until he died in 2016.

8. [122]

   Mr Tozer had a 10-year relationship with a woman which commenced when he was approximately 13 years of age. He had a son with her shortly before the relationship ended. His son is diagnosed with cerebral palsy and he cannot call to speak with him because he is nonverbal. He said that the woman is with someone else now and it is “easier for [him] to let them do their own thing”. He told Ms Cullen that if he were in the community, he would like to reach out but stated that he does not “have a say”.

9. [123]

   Mr Tozer told Ms Cullen that he joined a motorcycle gang and met the deceased, who was the club president at the time. In relation to the deceased, he stated:-

10. [124]

    In relation to his work history, Mr Tozer reported that he did “odd jobs here and there” and that he helped out at a car yard that he had with his mother. His longest period of ongoing employment was approximately three to four months. He reported that he has been employed as the delegate and sweeper at Long Bay Hospital for 4.5 years. He said that the delegate position was a privileged role, and that his completion of a workshop program had assisted him in that position.

11. [125]

    Ms Cullen noted that Mr Tozer has completed or attempted to complete a number of programs in custody. He was participating in the remand addictions program where he identified helpful strategies to assist him through difficult situations, but he was unable to complete the course because he was moved to a different prison. He completed the “Connect” program which is a “dialectical behavioural therapy program which focuses on strategies for distress tolerance, stress management, emotional regulation” and mindfulness techniques. An email from a John Moroney Services and Programs officer confirmed that he was unable to attend many programs because of the COVID-19 pandemic, but that Mr Tozer was provided with workbooks to complete in his cell and that he has attended the barber hygiene course and a “safe talk” course. The uncertainty around his movements between prisons and release on parole has also posed a difficulty for him in attempting to complete courses.

12. [126]

    Mr Tozer said that his mother is his “rock” and has consistently maintained contact with him since he entered custody in 2018. She is currently visiting him when she can, and they are speaking to each other daily. He initially had minimal contact with his sister following his most recent incarceration, but contact has increased in recent times.

13. [127]

    When he is released, Mr Tozer intends to leave the Penrith area but he acknowledged a need to briefly reside with his mother while he initially reintegrates into the community. Thereafter, he expressed an interest in moving to the coast where his sister and nieces are located, or to Hornsby, which is geographically in between his sister and mother. He intends to work in construction upon release.

14. [128]

    Mr Tozer commenced taking drugs at age 15 years after moving in with his father. His father would put a syringe in his mouth and squirt him with drugs. He started smoking heroin and using “bupe” at age 21. He said that heroin became his drug of choice. At the time of the offending, he was smoking up to 1g of heroin daily. He was also using cocaine, MDMA, OxyContin, Xanax and GHB on occasion. He continued to use illicit substances for the first three years on remand but stopped in about 2021 after there were supply issues associated with the COVID-19 restrictions. He experienced withdrawal symptoms at this time.

15. [129]

    Ms Cullen identified significant attitudinal and behavioral shifts from 2020 to 2025. Mr Tozer now demonstrated insight saying “I don't have the view of drugs I once did”. He recognised that cannabis was a gateway drug. He identified strategies in assisting him to overcome cravings. He impressed as someone who was taking accountability for his drug recovery. Justice Health summaries indicate that Mr Tozer has made at least five attempts to access services to address his drug dependency whilst in custody.

16. [130]

    Mr Tozer has a long standing history of multiple head trauma. In addition to being hit around the head by his father growing up, he lost consciousness on three additional occasions. The first was a motor vehicle accident in October 2008. The second was a motor vehicle accident in July 2010. The third occasion was in August 2008 when he overdosed on GHB, fell forward and smashed his head on a table. These accounts are consistent with hospital records.

17. [131]

    Mr Tozer was diagnosed with complex PTSD in about June 2023. In the past he has experienced fleeting thoughts associated with suicidality. In March 2022 he contracted COVID-19. He was thereafter diagnosed with myocarditis and his breathing is still affected.

18. [132]

    Mr Tozer’s presentation had markedly changed since 2020. He did not interject and had improved speech. This is clinically relevant with respect to his initial presentation, which was consistent with features of ADHD. Consistent with his claimed abstinence from illicit substances, he was observed to have gained weight. He had good episodic memory recall and sustained attention during the assessment.

19. [133]

    Ms Cullen believes that Mr Tozer continues to exhibit symptoms consistent with complex PTSD which would benefit from treatment. His score on the Level of Service Inventory (Revised) put him in the moderate risk and needs category. Ms Cullen noted that the score is heavily impacted by static, unchanging factors which means his risk of recidivism is unlikely to change over time.

20. [134]

    Mr Tozer told Ms Cullen that the deceased was his closest friend, who was involved in a drug cook that went wrong. He said that he went to Oberon to help the deceased. The deceased told Mr Tozer to bring drinks and some drugs and so he brought cocaine and alcohol and his brother brought heroin. The deceased brought some “oxys”. After the power went out they started drinking. He said that his brother had a shot of gear (speedball). The deceased saw his brother get smashed and wanted to have a shot to try it as well, as his “oxys” were not working. Mr Tozer told Ms Cullen that soon thereafter there was “pink ooze” coming out of the deceased’s mouth. He tried to wake up his brother. He screamed and slapped the deceased but he was “gone”. Mr Tozer tried to do CPR. He did not know what to do. He knew that the deceased had previous problems with proceeds of crime and he did not want the deceased’s wife, who was heavily pregnant at the time, to lose everything. They therefore just left everything set up and moved the deceased’s body because they did not want it to be found surrounded by a drug lab.

21. [135]

    Ms Cullen observed that her assessment of Mr Tozer identified an emotionally and socially deprived history, comprising of parental normalisation of alcohol and drugs, such that his father's administration of drugs to him likely resulted in a form of bonding. He had significant exposure to regular family violence, emotional invalidation, poor supervision and accumulative assaults to the head. All of this likely contributed to Mr Tozer’s reported delays in language, thereby contributing to poor academic achievement, a low frustration tolerance, irritability and mood lability, as well as to his conduct related concerns in adolescence which ultimately led to his contact with the justice system at age 17 years when he was sexually assaulted. Accordingly, in Ms Cullen’s opinion, Mr Tozer’s deprived background, parental substance misuse, and his experience of sexual abuse whilst in custody are relevant factors in understanding his subsequent drug and criminal trajectory. In her opinion, Mr Tozer’s adverse childhood experiences predisposed him to periods of low mood and a disrespect for authority. In Ms Cullen’s view, had Mr Tozer not been subjected to a deprived childhood, it is less likely that he would have endured the same trauma, which ultimately predisposed him to early onset drug misuse and criminality.

22. [136]

    Notwithstanding Mr Tozer’s moderate chance of general recidivism, Ms Cullen identified various protective factors that suggest his risk may be lower, such as his accountability for the offending, his sustained abstinence from illicit drugs, his insight into the impact of the offending on others which suggests remorse and contrition, realistic vocational goals, his demonstrated desire to make the most of his incarceration, the absence of antisocial personality traits, support from family and the near resolution of his sexual assault civil claim. In Ms Cullen’s view, to optimise Mr Tozer’s prognosis and in turn his risk of recidivism, it is recommended that he participate in long-term psychotherapy, which she observes is not likely to be available in the custodial environment.

23. [137]

    Ms Barhon’s 2020 report mirrored Ms Cullen’s report in all material respects with respect to the background history reported by Mr Tozer. I have noted some minor differences and additions as follows.

24. [138]

    The assaults upon Mr Tozer, his sister and his mother would occur on a weekly basis. He reported often getting knocked around the head, with about four or five more serious assaults when he was concussed or lost consciousness. He tended to normalise his exposure to substance misuse and violence. He also reported being involved in “fights every weekend” throughout adolescence and early adulthood. He recalled one occasion when he was severely assaulted by a group of men and when he woke up on the street some time after losing consciousness.

25. [139]

    Mr Tozer reported that his substance abuse began with drinking and smoking both cigarettes and cannabis when he was about 11 years old. By the time he was 12 or 13 years old, he was using a combination of ecstasy, speed, alcohol, cannabis and occasionally acid “all weekend, every weekend”. He continued to smoke cigarettes and cannabis on a daily basis in juvenile detention between the ages of 16 to 21 years. Upon his release, his involvement with the motorcycle gang led him into an environment where he had used “cocaine, ecstasy, pot and meth” typically five days per week.

26. [140]

    During Mr Tozer’s next period of incarceration, he began smoking heroin daily which continued upon release, and he would then use any drug to which he had access. He was using heroin, buprenorphine and ice daily and this increased upon returning into custody in 2011. While incarcerated, he reported that he would use “all day everyday”, using at least 2-3 grams of heroin and a “ball” of ice per day, as well as an ounce of cannabis every 2-3 days. He turned to polysubstance abuse as a coping mechanism in the weeks after his father and best friend died in 2016.

27. [141]

    During the current period of incarceration, he had “pretty consistently” used buprenorphine, heroin and ice, but he had not used in the last three months at the time of the report. He was attending both a relapse program and drug awareness program.

28. [142]

    Mr Tozer reported to Ms Barhon that he had not been diagnosed with any mood disorder, but commented that he was “always fighting off depression” and had gone through “dark periods” in his life. However, he had never attempted to self-harm and denied suicidal ideation.

29. [143]

    In relation to Mr Tozer’s schooling, Ms Barhon noted that he progressed normally through each grade but reported a very poor academic performance. She recorded that Mr Tozer believed that he may have dyslexia as he had some difficulties learning to read and write. His teachers had suggested to his mother that he be assessed for ADHD, but she did not believe in the condition and did not seek a diagnosis. He was expelled at the end of Year 9. He only completed his Year 10 Certificate in juvenile detention. His spelling remained quite poor but he was able to read and write at a basic level.

30. [144]

    After leaving school, Mr Tozer briefly worked as an apprentice carpenter. The “odd jobs” that he would do between periods of incarceration included work as a brick labourer and building Winnebagos.

31. [145]

    Mr Tozer also reported being a passenger in two motor vehicle accidents when he was about 21 years old. On both occasions he suffered a loss of consciousness but he did not seek medical treatment.

32. [146]

    Ms Barhon conducted a number of neuropsychological tests on Mr Tozer, the results of which she summarised as follows:-

33. [147]

    Ms Barhon recommended that Mr Tozer receive ongoing support and counselling in order to maintain his abstinence from illicit drugs, in addition to psychological therapy to address the trauma associated with his exposure to domestic violence during his formative years.

34. [148]

    Professor Nielsen’s report was tendered as exhibit 3 in Mr Bushell’s case and is addressed above. I have taken into account Professor Nielsen’s findings in each of Mr Tozer’s and Mr Bushell’s cases.

35. [149]

    Ms Fahmy swore an affidavit for the purpose of the sentence hearing, much of which was not read in the proceedings.

36. [150]

    Ms Fahmy attested to Witness A having given the following testimony during the joint trial, in addition to that noted in the agreed facts:-

    1. (1)

       He assisted with moving the deceased’s body because he “thought he was doing the only thing he could do to protect the deceased’s family”; and

    2. (2)

       He told Mrs Ciano not to give police the deceased’s Blackberry because he was concerned that police “will know everything he has been doing” and “that they would lose everything if [police] proved anything was proceeds of crime” and that he did so to protect the deceased, not Mr Tozer.

37. [151]

    Further, Ms Fahmy noted that in 2014, police located cocaine and methylamphetamine powder on a set of scales in the deceased’s apartment in Queensland, in addition to $40,000 in cash. On 18 November 2014, he was found guilty of possessing property suspected of having been used in connection with the commission of a drug offence and the cash was confiscated on the basis that it constituted proceeds of crime.

38. [152]

    Ms Fahmy clarified that the “important scheduled appointment in Blacktown at noon on 12 February 2017” which Mr Tozer had (referred to in the s 191 facts above) was an appointment with his Community Corrections officer, Ms Jeffress. She gave evidence at the joint trial that:-

    1. (1)

       Mr Tozer, as part of his parole conditions, was not permitted to contact or associate with “people from motorcycle groups” or Ricky Ciano, and if he was found to do so, he would place “himself and [parole] supervision in jeopardy” as “it wasn’t contributing to his new pathway”; and

    2. (2)

       On 15 February 2017, Mr Tozer attended a meeting with Ms Jeffress, having failed to attend on 12 February 2017. At that meeting, Mr Tozer requested permission from Ms Jeffress to attend the deceased’s funeral but was advised that it “wouldn’t be in his best interests” and that he could not go.

39. [153]

    Annexed to Ms Fahmy’s affidavit were two letters sent from Mr Tozer to his mother. When considered in light of the reports outlined above, they constituted further evidence of an ongoing relationship with his mother. They also demonstrate that Mr Tozer feels a level of shame with respect to the way that his life has turned out.

40. [154]

    Ms Fahmy also attested to the following medical history related to Mr Tozer’s diagnosis with COVID-19.

41. [155]

    On 17 February 2022, he received his third dose of the COVID-19 Pfizer vaccine. Approximately two weeks after this vaccination, Mr Tozer contracted COVID-19. On 1 April 2022, Mr Tozer was taken from custody by ambulance to the Prince of Wales Hospital, and Corrective Services advised that he was complaining of chest pain and difficulty breathing. He was later advised that treating specialists had given a preliminary diagnosis of post-COVID myocarditis. On 6 April 2022, Mr Tozer was discharged from the hospital.

42. [156]

    Since that time, the diagnosis of myocarditis has been confirmed through Justice Health records and several engagements with specialists including a cardiologist and a respiratory physician. Mr Tozer has been hospitalised in custody at least six times since the initial admission. Each hospitalisation was a consequence of difficulty breathing and chest pains with varying degrees of severity, and each occasion is attributed to the ongoing impact of myocarditis.

43. [157]

    Mr Tozer wrote an undated letter to the Court. That letter demonstrated insight into the offending and the antecedents which led to the events occurring in early 2017.

44. [158]

    Mr Tozer noted that when he was growing up, drugs were an engrained part of his everyday life and that everyone he looked up to was on drugs. He said that he was sorry for the loss that he has caused and acknowledged that he was not the victim in this matter. He took responsibility for the death of his best friend and said that it was something that he would carry for the rest of his life.

45. [159]

    Mr Tozer stated that in the past he did not have the tools to stay away from drugs which he has now. He believes that he has developed personally during his time in incarceration. He would like to contribute to the community and be a person of whom his family can be proud.

46. [160]

    A chronology prepared by Mr Tozer’s solicitors demonstrates that he has given consistent histories to medical staff from 2019, that he has requested assistance with drug rehabilitation since that date, and that he has had myocarditis relating to COVID-19 since 2022 for which he has required specialist treatment and hospitalisation.

47. [161]

    Mr Tozer has completed the remand addiction programme, the harm reduction in the yard workshop, the Connect dialectical behaviour and resilience programme, the barber hygiene course and a safe talk programme.

48. [162]

    Other documents confirm that Mr Tozer had a motor vehicle accident in October 2008 when he suffered amnesia, that he was using opioids, heroin and amphetamines in 2016 and that his brother Mr Bushell was admitted to Mount Druitt Hospital following a GHB and heroin overdose on 9 February 2017. There is also a letter from Shine Lawyers who act for Mr Tozer in a civil claim relating to historical childhood sexual abuse, and who expect meaningful negotiations to commence with the defendant in the near term.

Victim impact statements

1. [163]

   Three victim impact statements were tendered in both Mr Bushell’s and Mr Tozer’s cases. The deceased’s father, Mr Ciano, had his statement read out in court by a solicitor employed by the Director of Public Prosecutions. I was invited to read and consider the other two statements in chambers, which I have done.

2. [164]

   On the application of the Crown, I take into account the three victim impact statements pursuant to s 30E(3) of the Sentencing Act, in connection with the determination of the punishment for the offence, on the basis that the harmful impact of the death of the deceased on the victim is an aspect of the harm done to the community. I am satisfied that this is appropriate, and I observe that both offenders agreed to this course of action.

3. [165]

   Unsurprisingly, Mrs Ciano remains impacted by the death of her husband. The shock was at first debilitating, and she experienced suicidal thoughts and withdrew from her friends. At the time of the death of her husband, she was pregnant with their then unborn son. She was concerned that the shock and stress associated with his death might cause her to miscarry. She had to give birth without her husband present and this was emotional and very difficult, rather than one of the happiest days of her life. It has taken immense strength to regain control and confront the pain that she feels, but the wound will never fully heal.

4. [166]

   Mr Ciano, the deceased’s father, is still affected by the death of his son and is still devastated. He feels that a part of him is missing and that there is a hole in his heart which can never be filled. Mr Ciano’s statement describes the love and support provided by his son to his extended family, the reciprocal nature of that love and the profound effect of his death on his son’s daughter. In his son’s absence, Mr Ciano has had to try to hold the family together which he says is extremely difficult. He is still heart broken and he thinks about his son every day.

5. [167]

   Ms Barnier’s statement expressed the ongoing impact of the death of her former husband on her and their daughter who was 5 years old when he died. She said that the deceased showered their daughter with love, care and support and left an indelible mark on her heart. She described a number of the many important life events and milestones that their daughter will have to experience in the absence of her father, and the pain and heartache that will remain indefinitely. She asked the Court to recognise the impact into the future generations of their family.

6. [168]

   The Court expresses its gratitude to Mr and Mrs Ciano, and Ms Barnier, for courageously providing their statements which shed light on the deceased’s personal life, his significance to their extended family and the void left by his absence in their lives. Together they describe a man who was a central part of their family and who provided love and support to those around him. As a result of the offenders’ actions, Mr Ciano’s son pre-deceased him, which is a parent’s nightmare. Mrs Ciano, Ms Barnier and their children are left without a father figure in their family units. When a father and husband dies at such a tender age, the loss continues through lifetimes.

7. [169]

   The death of the deceased is a tragedy for his family and for his friends. It is also a tragedy for the community, which has lost one of its contributing members. We are less of a community because of the loss of the deceased. On behalf of the community, the Court acknowledges the pain and suffering of Ms Barnier, Mr and Mrs Ciano, and expresses its condolences to all who loved and have lost Ricky Ciano.

Consent

1. [170]

   An important factual matter which both offenders contend that I can find on the balance of probabilities, is that the deceased consented to the intravenous injection of a dose of cocaine and heroin by Mr Bushell. The Crown submits that, although I cannot find beyond reasonable doubt that the deceased did not consent, I am unable to find on the balance of probabilities that he did consent.

2. [171]

   Mr Taylor appropriately conceded that I could easily find that that it was possible that the deceased consented to the intravenous injection, but he submitted that I could not find that it was probable and thus it is unknown if Mr Ciano consented.

3. [172]

   Mr Taylor could point to no motive for the non-consensual injection of the speedball. He submitted that I should take into account the circumstances in which the event took place, in particular that the injection took place in the context of an illegal manufacture of drugs. Mr Taylor submitted that there is no evidence that the deceased ever engaged in any intravenous, as opposed to intramuscular or subcutaneous, drug administration (of which there is an abundance of evidence). Further, he submitted that there is no evidence that he had ever taken cocaine or heroin intravenously. He submitted that it would be a leap to find, on the balance of probabilities, that in these circumstances the deceased made a decision to put cocaine and heroin into his vein. On the known facts, Mr Taylor submitted that it would be a quantum leap to go from smoking heroin and taking oxycodone “like smarties” in the period before the death of the deceased to knowingly agree to the intravenous administration.

4. [173]

   Mr Quilter drew the Court’s attention to six matters (additional to those factors set out in the Agreed Facts at [35] above), which he submitted indicate that the deceased consented to the injection:-

   1. (1)

      The offenders are charged with manslaughter rather than murder, so there was no intention to kill or cause grievous bodily harm, and no reckless indifference to human life. In his submission, a finding that the deceased consented to the injection sits comfortably with that scenario;

   2. (2)

      Mr Tozer was one of the deceased’s closest friends at the time of his death, which increases the likelihood that this was a scenario of consensual shared drug consumption between the three men;

   3. (3)

      There is no established motive for the offenders to have administered the drugs for a non-consensual reason in circumstances where they were engaged in a shared venture to manufacture drugs;

   4. (4)

      The absence of evidence that the deceased was sedated or overpowered makes a non-consensual administration less likely and thus, a consensual administration more likely; and

   5. (5)

      Mr Ciano’s purchase of a DVD player and DVD movies just prior to his arrival in Oberon (set out in the s 191 facts) suggests the need for entertainment during waiting periods in the manufacturing process. He submitted that consensual drug use was a form of entertainment during waiting periods during the drug manufacturing process at Oberon, and that it was entirely plausible that the deceased would have undertaken such an activity taking into account the agreed facts.

5. [174]

   With respect to the agreed facts which are said to suggest that the deceased did not consent to the administration of the drugs, Mr Quilter submitted that to the extent that they might suggest that that the deceased would not have engaged in such risky behaviour because of his devotion to his family, it should be remembered that he was engaged in a significant drug manufacture at the time of his death which was attendant with risk. He further submitted that the factors against consent are not timed in the same way that the factors favouring consent are, and which are proximate to the death of the deceased. For example, it is agreed that not long before the death of the deceased, he took heroin and was interested in the injection of opioid substances. Mr Quilter submitted that I could infer that there was an increasing amount of opioid use in the months prior to the deceased’s death, from which I can infer – from this build-up together with other factors favouring consent – that it is more probable than not that the injection was consensual. I accept these submissions.

6. [175]

   Mr Djemal SC, who adopted Mr Quilter’s submissions on this issue, submitted that the real issue for determination was binary – did the deceased consent or did he not. He submitted that the true alternative to consent was the absence of consent which would require evidence of either sedation or resistance (of which there is none).

7. [176]

   Mr Djemal submitted that all of the evidence supports a positive finding that the injection was administered with the deceased’s consent and at his request. He observed that the uncontested evidence supports the finding of consent, including the expert report of Professor Neilsen concerning the known trajectory from oxycodone to heroin, the absence of evidence that the deceased was overborne or subdued, the deceased’s escalating drug addiction in the months before his death (including his internet search history right up to the morning of his death), the evidence of the supply of large amounts of prescription opioids to the deceased in the weeks preceding his death, the fact that the deceased’s family were unaware of the extent of his opioid use, that the deceased had shifted from the oral consumption of oxycodone to other methods of consumption consistent with abuse (including crushing Targin which subverts the controlled release mechanism of the drug to permit a faster effect), that the deceased was not heroin or cocaine naïve, that heroin is metabolised to morphine and the deceased was already a user of Kapanol which is also morphine, that he had undertaken a series of internet searches about injecting Kapanol and comparing it to oxycodone, all of which are consistent with an upward trajectory of his drug use at that time. I accept these submissions.

8. [177]

   Mr Djemal further submitted that I would accept that Mr Tozer’s utterances to Witness A, about the deceased’s death being accidental and that he tried to perform CPR on the deceased, were consistent with Mr Tozer’s report to Ms Cullen that his brother had a shot of the drugs and the deceased then wanted to have a shot as his oxycodone was not working. Mr Tozer further told Ms Cullen that after his brother and the deceased had the speedball, he tried to wake his brother and tried to slap and perform CPR on the deceased. I do not doubt the consistencies in these statements – indeed they are consistent – although I observe that it is not agreed that the utterances of Mr Tozer to Witness A are proof of their truth. However, the agreed facts speak of DNA of both Mr Bushell and the deceased being located inside the barrel and the plunger of the syringe, from which I infer that Mr Bushell injected himself with a speedball prior to him injecting the deceased with the same. That is not a big leap, bearing in mind that it is agreed that Mr Bushell was discharged from Mount Druitt Hospital following a drug overdose the day before the events in question. I note that it is an agreed fact that Mr Tozer observed the deceased consuming oxycodone prior to the injection which is also consistent with his statements to Witness A and Ms Cullen.

9. [178]

   In my opinion, there is an abundance of evidence (referred to above) from which I can conclude, on the balance of probabilities, that the deceased consented to the injection of the speedball containing cocaine and heroin. I adopt Mr Quilter’s submission that such a finding provides a cogent and coherent narrative of events.

10. [179]

    So far as the agreed facts setting out matters indicating the deceased did not consent, in my opinion they can each be substantially discounted. That the deceased had a positive attitude to life did not appear to have stopped him from abusing opioids in very large quantities. His past views about heroin did not prevent him from asking for and receiving heroin for his use in the weeks prior to his death. Whilst in 2010 the deceased said he was petrified of needles during the course of intravenous therapy, at the date of his death the deceased was heavily tattooed, all of which were created by tattoo needle. He was known to regularly use subcutaneous and insulin syringes to inject human growth hormone and steroids. His recent internet searches concerned the injection of opioids. As to death occurring up to 30 minutes after injection, this is consistent with an accidental overdose. As to the deceased passing a breath test at 11.45 am on the day he was travelling to Oberon, when he did not appear to be drug affected, in my view this says nothing about what likely occurred many hours later.

11. [180]

    Here, there were three men who knew one another and were on friendly terms. Two were brothers. Two were very close friends. There is no evidence of discord. Each of the three had significant drug addictions. The deceased had used both cocaine and heroin. He was a significant abuser of various opioids, many of which he used in an off-label manner. He used needles to inject himself with hormones and steroids. On the day that he travelled to Oberon he was searching the internet to find information about withdrawal following the injection of oxycodone/naloxone combination tablets. The undisputed expert evidence is that there is a clear link between prescription opioid dependence and illicit opioid dependence.

12. [181]

    Taking into account all of the circumstances, I find that the deceased consented to the intravenous administration of the cocaine and heroin and that he died of an accidental overdose.

13. [182]

    All parties agree that this finding significantly diminishes the objective seriousness of the manslaughter.

Mr Bushell

1. [183]

   As Beech-Jones, then CJ at CL said in R v White [2023] NSWSC 611 (“White”) at [25]-[27]:-

2. [184]

   Manslaughter carries a maximum penalty of imprisonment for 25 years, the greatest maximum penalty in the criminal law of New South Wales, other than life without the possibility of parole. There is no standard non-parole period prescribed. The offence will almost inevitably be objectively serious, as it concerns the criminal taking of human life: see R v Johnson (No 5) [2017] NSWSC 1169 per Button J at [25]. In the present case, the unlawful and dangerous act of the offender caused the death of Mr Ciano. It is therefore objectively serious.

3. [185]

   The Crown observed that Mr Bushell is to be sentenced on the basis that he injected the deceased without intending to kill him or to cause him grievous bodily harm. Indeed, I have found on the balance of probabilities that the intravenous injection of the mixture of heroin and cocaine was consensual in the context of recreational drug use.

4. [186]

   Mr Taylor submitted that there was sufficient scope to appropriately sentence the offender having regard to the fact that the death of the deceased was caused by the unlawful act of Mr Bushell, being the intravenous administration of prohibited drugs by Mr Bushell to the deceased made unlawful by virtue of s 13 of the DMT Act. In the agreed facts it is agreed that the act was dangerous because Mr Bushell realised that it exposed the deceased to a risk of serious harm insofar as he was aware that the deceased had consumed alcohol and opioid medication and that the intravenous injection contained a dose of cocaine and heroin.

5. [187]

   The Crown pointed to the circumstances in which the offending took place, noting that the offence took place in the context of illegal manufacture of methylamphetamine in a remote location. The speed of death occasioned by the speedball meant that the deceased was at grave risk of not obtaining life-saving medical assistance, even had it been sought, which adds to the seriousness of the offending.

6. [188]

   Further, it was submitted that the offender made no attempt to seek medical assistance which increases the offender’s moral culpability for the offence. I observe that Mr Quilter submitted that I would not be satisfied of this beyond reasonable doubt, particularly bearing in mind Mr Bushell’s statement to Dr Furst that he and his brother unsuccessfully attempted CPR. That statement is untested, but it is corroborated by Mr Tozer in his statements to Ms Cullen. There is no suggestion that they have collaborated. I am unable to find, on the balance of probabilities, that Mr Bushell did perform CPR on the basis of that untested statement, but neither am I able to find beyond reasonable doubt that he made no attempt to seek medical assistance.

7. [189]

   Mr Taylor also submitted that the offender’s treatment of the deceased’s body is a matter of aggravation, as was his concealment of the circumstances in which the death occurred. He submitted that the offender’s actions in returning and moving the body into the deceased’s car, getting rid of the deceased’s blood stained shorts, wiping the car down to remove the offender’s DNA and then placing the syringe and pill bottle in the back footwell next to the body were deliberate acts to make the death look like a suicide. These acts, he submitted, delayed the detection of the offence and the location of the deceased. Mr Quilter took issue with this submission and submitted that whilst the deceased’s body was moved, it was put in a place where it would be found and which I note is an agreed fact. He submitted that the body was moved because there was a drug operation going on at the rural property, and there was a concern that if his body were left at the property it might not be detected for months and if it was found at a location where a drug operation was taking place, it may have had financial consequences for Mr Ciano’s family. I observe that the portion of Ms Fahmy’s affidavit which was admitted without objection dealing with the deceased’s previous interaction with Queensland authorities with respect to proceeds of crime supports this submission.

8. [190]

   Mr Quilter also submitted that the acts relied upon by the Crown, said to be deliberate acts to make the deceased’s death look like a suicide, could not be established beyond reasonable doubt. I agree with this submission. Without more, I am unable to be satisfied that Mr Bushell’s actions were deliberate acts to make the deceased’s death look like a suicide.

9. [191]

   As to statutory aggravating factors, Mr Taylor submitted the offence was committed whilst the offender was on conditional liberty, the offender then being subject to six s 9 bonds: s 21A(2)(j) of the Sentencing Act. That this aggravating factor is present is not in dispute. Mr Taylor also submitted that the offender was in company (with Mr Tozer): s 21A(2)(e) of the Sentencing Act. Mr Quilter disputed that this aggravating factor was present. He conceded that two men were present, but submitted that it was unknown precisely where Mr Tozer was at the time of the administration. He further submitted that even if Mr Tozer was there, “in company” could not operate to aggravate this offence, as his presence could not have made the offending any more serious in circumstances where the administration of the injection was consensual. In my opinion, the mere presence of Mr Tozer, in circumstances when Mr Bushell was administering the injection, cannot be fairly said to increase the criminality of his offending. To have a significant effect on a sentence, it must have actually aggravated the offending: see Gore v R; Hunter v R [2010] NSWCCA 330 at [29]-[30]. I accept Mr Quilter’s submission.

10. [192]

    Mr Quilter submitted that this was a case that could be distinguished from most examples of manslaughter by unlawful and dangerous act where there is evidence beyond reasonable doubt that the deceased did not consent to the unlawful act. It was further submitted that the distinction is greater if the factual dispute regarding consent was determined in Mr Bushell’s favour.

11. [193]

    Mr Quilter pointed to five additional factors relevant to the objective seriousness of this case:-

    1. (1)

       There was no evidence of planning (which was accepted by the Crown);

    2. (2)

       The offence was not sophisticated (which I accept);

    3. (3)

       The offence did not involve an act of aggression or hostility toward the deceased (which I accept as it was consensual);

    4. (4)

       The unlawful act falls toward the lower end on a scale of seriousness (compared for example with sexual assault), and the maximum penalty for the unlawful act is 2 years imprisonment; and

    5. (5)

       Although Mr Bushell moved the deceased’s body following his death, this is not a case where the body was hidden.

12. [194]

    I do not put the objective seriousness of this manslaughter on a notional range. It is clearly not as serious as other instances of manslaughter, particularly in light of the finding I have made with respect to consent. However, the offending is objectively serious, as it concerns the unlawful killing of Mr Ciano by an unlawful and dangerous act. It is accepted that the act was dangerous because the offender realised it exposed the deceased to a risk of serious harm. That risk eventuated.

13. [195]

    The Crown drew the Court’s attention to a number of factors which it said were relevant to the assessment of objective seriousness.

14. [196]

    With respect to all three drug offences, the Crown submitted that the evidence of Mr Bushell’s conversation with his cellmate on 16 December 2016 indicated that he played an important role in the drug manufacture and supply activities. It was submitted that Mr Bushell’s comments were not consistent with someone who simply followed instructions, and that they indicated an awareness of what he was doing. The Crown conceded that Mr Bushell’s role was less significant than Mr Tozer’s because there was no evidence that he directed anyone, as Mr Tozer did.

15. [197]

    With respect to Count 1, it was submitted that the offence fell within the mid-range. The Crown relied upon the quantity being four times the threshold for a large commercial quantity, the purity being between 59% and 75.5%. It was submitted that it could be inferred that the drugs supplied were derived from the manufacturing activities at the Lethbridge Park premises, and that the drugs were in the process of being disseminated into the community when police intercepted Mr Kupelian near Taree. The Crown referred me to the case of R v Qi [2019] NSWCCA 73; 277 A Crim R 82 at [76]-[78], which dealt with an offence of supply large commercial quantity of methylamphetamine in the same quantity as Count 1.

16. [198]

    With respect to Count 2, it was submitted that the objective seriousness was above mid-range, having regard to the forensic evidence demonstrating the offender’s clear involvement in the manufacturing process, and the quantity being nearly three times greater than the large commercial quantity. That the offence was committed for financial gain could be inferred. The Crown submitted that the Form 1 offence which attaches to Count 2 points generally to greater weight to be given to specific deterrence.

17. [199]

    With respect to Count 3, the Crown submitted that the objective seriousness was at the lower end of the mid-range, the quantity supplied being between five and six times greater than the large commercial quantity. It was noted that there was no evidence that the MDA was manufactured in the Lethbridge Park premises which suggested involvement in broader drug enterprises.

18. [200]

    Mr Taylor submitted that the evidence indicates an intention to manufacture and distribute large amounts of prohibited drugs with no qualms on the part of the offender to service and maintain that illegal market.

19. [201]

    Mr Quilter submitted that the factors relevant to the assessment of objective seriousness in Mr Bushell’s case are as follows:-

    1. (1)

       The quantities of the drugs are substantial but relatively modest when considered within the large commercial range;

    2. (2)

       For counts 1 and 2, the purity was not particularly high. For count 3, the purity was low;

    3. (3)

       The search warrant at Ropes Crossing did not yield evidence of large scale drug activity;

    4. (4)

       The drug laboratory was not overly sophisticated and was in a unit within a multi-storey residential unit block. There was no diversion of electricity or gas;

    5. (5)

       Mr Bushell’s DNA was found on items in the unit which suggests that he engaged in risk laden activity. There is no evidence that he contributed any particular skill;

    6. (6)

       Unlike Mr Tozer, there is no evidence that Mr Bushell gave directions to any co-offender. There is no evidence that Mr Bushell recruited anyone. Although Mr Bushell’s role was more substantial than Mr Kupelian, it should be assessed as being below that of Mr Tozer. Given Mr Bushell’s mental condition, his claim to Dr Furst that he did what Mr Tozer said is entirely plausible;

    7. (7)

       Although the motive was financial gain, the offences occurred in the context of Mr Bushell’s long term drug addiction;

    8. (8)

       There is no evidence that Mr Bushell lived a lavish lifestyle; and

    9. (9)

       The drugs were not in fact disseminated into the community, noting that this is not a mitigating factor (in accordance with AB v R [2013] NSWCCA 273 at [92] per Johnson J (Hoeben CJ at CL and Bellew J agreeing)).

20. [202]

    As always, it is very difficult with precision to determine Mr Bushell’s role in the drug enterprise. It is not suggested that he was the principal. He was clearly a trusted participant and was significantly involved in the manufacture, and was at least in part acting at the direction of his brother Mr Tozer. I accept counsels’ submissions generally as to the factors that go to determining objective seriousness. The quantities were significant, but the purity of the MDA was low. The operation was unsophisticated, as it took place in a residential unit. Mr Bushell no doubt participated for financial gain, although he likely accessed some of the drugs to feed his own drug habit.

21. [203]

    I observe that there is no obligation on a court to indicate where on a notional scale of objective seriousness the offending lies.

22. [204]

    In DH v R [2022] NSWCCA 200, Yehia J said at [58]-[60]:-

23. [205]

    I do not propose to make findings on a notional scale. However, I note that Flannery SC DCJ found that the objective seriousness in Mr Tozer’s case, for precisely the same offending and in which he played a greater role, was below the mid-range, but not appreciably so. I have taken into account similar considerations to her Honour in coming to a view that the offending was objectively serious for the reasons stated.

24. [206]

    Mr Quilter relied on s 21A(3)(j), that the offender was not fully aware of the consequences of his or her actions because of, relevantly, his mental state. I cannot make this finding on balance on the state of the evidence, taking into account what appears to be an understanding of his actions when he was captured on a listening device, although I accept that Mr Bushell’s schizophrenia is an important consideration on sentence. I deal with the offender’s mental state and its impact on sentence below.

25. [207]

    It was agreed between the parties that the EAGP scheme applies only to the manslaughter offence but does not apply to the drug offences. It is also agreed that the offender is entitled to a discount of 25% for the manslaughter offence pursuant to s 25E of the Sentencing Act.

26. [208]

    Mr Quilter submitted, and the Crown agreed, that a discount of 25% should also apply to Count 1 of the drug offences because Mr Bushell pleaded guilty in the Local Court.

27. [209]

    Mr Bushell pleaded guilty to Counts 2 and 3 three days before his trial was due to commence. The trial was expected to take four weeks and was of some complexity. Mr Tozer received a 20% discount with respect to each count for pleas which were noted by Flannery SC DCJ to have been entered more than 14 days before trial. The Crown submitted that, on the basis that the Crown had prepared for a lengthy trial, a 10% discount would be appropriate for each of Counts 2 and 3, although he accepted that that percentage was not fixed. Mr Quilter submitted that a discount similar to or slightly less than the discount allowed for Mr Tozer would be appropriate in the circumstances.

28. [210]

    Bearing in mind the timing of the plea and the complexity of the trial it avoided, in my view the discount for the utilitarian value of the pleas to Counts 2 and 3 should be 15%. In coming to that view, I have carefully considered Thomson and Houlton and Borkowski.

29. [211]

    The Crown submitted that Mr Bushell’s criminal history did not assist him, in the sense that he was not entitled to leniency. He conceded that Mr Bushell’s ten-year gap in offending between 2005 and 2015 might point to an ability to rehabilitate.

30. [212]

    Mr Quilter accepted that the offender was not entitled to leniency on account of his past criminal history.

31. [213]

    The Crown noted that Mr Bushell’s actions immediately after the deceased’s death were not consistent with remorse. However, he conceded that the offender expressed appropriate remorse to Dr Furst in the sense required by s 21A(3)(i) of the Sentencing Act.

32. [214]

    Mr Quilter specifically relied on Mr Bushell’s expressions of remorse to Dr Furst in relation to the manslaughter offence, and his description of the last eight years as a “big wake up call”. He submitted that Mr Bushell had likewise expressed to Dr Furst an awareness of the harmful effects of drugs and addiction on the community.

33. [215]

    It was conceded by the Crown that it was open to the Court to afford Mr Bushell “some allowance on account of remorse”, and I take it into account in my determination of an appropriate sentence.

34. [216]

    Mr Bushell has been in custody referable to these offences since 28 April 2017. It is agreed that a sentence should commence on that date.

35. [217]

    In my opinion, Mr Bushell’s significant mental health issues, his drug addiction and his background of disadvantage are interrelated, and so I will deal with them together. It is not in dispute that his upbringing amounts to profound deprivation which has not diminished with time, and must be given full weight in the determination of an appropriate sentence: see Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy) at [46] and Hoskins v R [2021] NSWCCA 169 per Brereton JA at [57]. There was debate at the hearing of the sentence about whether or not the offender’s mental health and upbringing resulted in a reduction of the objective seriousness of the offending. To be clear, and putting to one side the question of whether an offender’s upbringing can reduce objective seriousness at all, in my opinion neither were causally related to the offending in the manner described in Tepania v R [2018] NSWCCA 247; 275 A Crim R 233 and DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156. However, the question of whether those factors reduce Mr Bushell’s moral culpability for the offences is separate and distinct.

36. [218]

    Mr Quilter submitted that Mr Bushell’s disrupted and unstable childhood in combination with his mental state are relevant to his moral culpability or blameworthiness. He submitted that there were several matters which related to Mr Bushell’s upbringing that were relevant to determining his moral culpability. They include his parents separating when he was three years old, that he lived with each of his parents in different places at different times but also experienced episodic homelessness, that his parents had issues with drug abuse and addiction, that he used cannabis from the age of 15 or 16 years which escalated into more serious drug abuse, that he struggled at school, was placed in “special classes”, repeated a year and ultimately left mid-way through year 10, that he developed symptoms of psychotic illness in his mid to late teens and was diagnosed with schizophrenia at the age of 17 years and that he spent time in boys’ homes as a juvenile. All of these matters are fully set out in Dr Furst’s report of 7 February 2021.

37. [219]

    With respect to Mr Bushell’s mental state, it was submitted (relying on Dr Furst’s reports) that he has long suffered from a chronic psychotic illness in the form of schizophrenia which has resulted in long-term psychosocial and occupational functional impairment.

38. [220]

    Mr Quilter submitted that the following mental health factors set out by Dr Furst were relevant to the drug offending:-

    1. (1)

       Dr Furst considered that Mr Bushell was influenced by Mr Tozer;

    2. (2)

       Mr Bushell’s mental deficits made him more vulnerable to the influence of his brother; and

    3. (3)

       His mental deficits made him less concerned about the potential consequences of his offending actions.

39. [221]

    He submitted that the following mental health factors, also set out by Dr Furst, were relevant to the manslaughter:-

    1. (1)

       Dr Furst believed that Mr Bushell’s “poorly controlled and chronic schizophrenic illness, coupled with his low level of intellectual function had an adverse effect on his judgment and his decision-making when he injected the mixture of heroin and cocaine into the deceased”; and

    2. (2)

       Mr Bushell’s impulsivity and deficits in consequential thinking likely contributed to his offending actions.

40. [222]

    Mr Quilter submitted that Mr Bushell’s mental condition contributed to his offending in a material way such that his moral culpability is reduced in accordance with the principles in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (De La Rosa).

41. [223]

    The Crown observed that Dr Furst stated there is “no suggestion that Mr Bushell’s offending [in relation to the drug offences] was directly driven by his schizophrenic illness, ie he was not following the instructions of voices or delusions.” However, Dr Furst was of the opinion that his schizophrenic condition was still relevant as “people with schizophrenia… typically have impairment in cognitive function/frontal-executive function including deficits in planning, decision making…”. The Crown submitted that there was no evidence that Mr Bushell was experiencing acute symptoms of mental illness at the time the offences occurred, and his involvement combined with the lawfully recorded conversations, tended to indicate that he knew what he was doing. With respect to the manslaughter offence, the Crown submitted that Mr Bushell’s actions and decisions on the day after the deceased’s death permitted an inference that Mr Bushell was aware of his actions and their implications.

42. [224]

    Ultimately, the Crown submitted that Mr Bushell’s mental health issues and upbringing supported a diminution in his moral culpability. However he submitted that it would be modest and that the need for general deterrence, retribution and denunciation ought to continue to play a role in my determination of an appropriate sentence.

43. [225]

    In my view, there is ample evidence of a deprived background. Mr Bushell was raised in two homes in two states. He experienced homelessness from a young age. His schooling was interrupted. He was exposed to both his parents taking drugs from an early age. To this must be added the significant psychiatric diagnosis he received as a teenager. Layered upon this is the yoke of an escalating addiction to drugs.

44. [226]

    It is conceded that the offender’s mental health issues did not cause his offending, although Mr Quilter submitted that it contributed to the offending in a material way. However, in my view, the language of the common law and its interaction with concepts relating to mental health is unhelpful in Mr Bushell’s case. In Luque v R [2017] NSWCCA 226 (“Luque”), Hamill J said at [114]:-

45. [227]

    In this passage, his Honour was picking up some of the language and concepts set out in the well-known passage of De La Rosa at [177], where McClellan CJ at CL summarised the principles to be applied in sentencing an offender who was suffering from a mental condition at the time of committing the offence, to the following effect (leaving to one side an offender who was more dangerous because of a mental condition):-

    1. (1)

       It might reduce his moral culpability (and consequently the need to denounce the crime);

    2. (2)

       It might render him a less appropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed;

    3. (3)

       It might mean that a custodial sentence weighs more heavily upon him; and

    4. (4)

       It might reduce the significance of specific deterrence.

46. [228]

    In this particular case in my opinion the offender’s mental illness in combination with other factors reduces his moral culpability. Although I do not have to find a link or connection, in my view there is a clear association or a nexus between the offender’s background of deprivation and his significant mental health issues and the instant offending, that for all intents and purposes amounts to material contribution in the sense that they are not capable of disentanglement. In my opinion, they have precipitated the offending behaviour. Further, in my opinion, in all of the offender’s circumstances and because of the combination of the disadvantages he has suffered, he was unable to make choices in the same way as an average person at the time of the offending.

47. [229]

    I must determine whether the disadvantage and adversity suffered by Mr Bushell reduces his moral culpability. In my opinion, there is more than ample indicia, which I do not grade or rank. I note the oft cited quote of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2 at [69]:-

48. [230]

    This is such a case. Taking into account the limited emotional resources of the offender and his sometimes florid mental illness, it is perhaps unsurprising that the tragic events the subject of these proceedings have manifest themselves. In my opinion, Mr Bushell’s moral culpability is reduced. It is important that the victims understand that this finding does not extinguish Mr Bushell’s moral culpability for the unlawful homicide of Mr Ricky Ciano. It does not, and he bears responsibility for the commission of that offence. My finding is that his moral culpability is diminished, which I will take into account as a matter to synthesise on sentence.

49. [231]

    The Crown submitted that the most favourable finding the Court could make is that his prospects are extremely guarded. Mr Taylor observed that the offences were committed when the offender was subject to conditional liberty. Mr Bushell was released to parole on 22 December 2016, and the short length of time between release and reoffending was relied upon by the Crown as a factor weighing against Mr Bushell’s prospects. He fairly conceded, however, that there was a ten-year gap in offending on Mr Bushell’s criminal record, which might militate in favour of there being some prospects.

50. [232]

    Mr Quilter relied on a number of matters set out in Dr Furst’s latest report to submit that Mr Bushell has some prospects of rehabilitation. First, Mr Bushell has been taking antipsychotic medication which has led to improvement in his schizophrenia symptoms and he is receiving treatment (successfully) for his opiate dependence. Second, he is in regular contact with his family and feels supported by them. His family will assist him in obtaining labouring work. Third, Mr Bushell’s prognosis improved between his consultations with Dr Furst as a result of his changed attitudes and self-reflection, and can be expected to continue to improve. Finally, Mr Bushell is now aged 51 which is an age when, in Mr Quilter’s submission, criminal offending is less likely to occur.

51. [233]

    I cannot find that Mr Bushell’s prospects of rehabilitation are good and that his risk of reoffending is low. However, based on the evidence of Dr Furst, I am able to find that his prospects have improved over the past few years and his risk of reoffending has likely diminished. In my opinion, Mr Bushell’s prospects of rehabilitation are guarded. It is hoped that when he is returned to the community, and with considerable support and assistance, they will continue to improve.

52. [234]

    Mr Quilter relied upon Bugmy and Ryan v R [2017] NSWCCA 209 at [19] to make the submission that Mr Bushell is a less appropriate vehicle for general deterrence as a result of his background and mental disorder. There is some force to this submission, taking into account Mr Bushell’s significant mental illness which will need to be monitored closely throughout his lifetime. Nonetheless, I consider that general deterrence still has some limited role to play in the sentencing exercise.

53. [235]

    As to specific deterrence, taking into account Mr Bushell’s criminal history, specific deterrence likewise has some limited role to play.

54. [236]

    It was submitted on behalf of Mr Bushell that his time in custody has been particularly burdensome as a result of four matters which should be taken into account when fixing an appropriate sentence:-

    1. (1)

       His diagnosis of schizophrenia results in hallucinations and paranoid thinking which renders him vulnerable in custody;

    2. (2)

       He has been incarcerated for the whole of the COVID-19 pandemic;

    3. (3)

       During the last two years he has experienced problems with an infected ulcer in his leg and has a history of chronic back pain; and

    4. (4)

       For most of his time in custody, he has been a remand inmate.

55. [237]

    Mr Quilter submitted that these matters are relevant to both the length of the total sentence and the non-parole period, in addition to a finding of special circumstances.

56. [238]

    The Crown conceded that it was open to find that Mr Bushell’s vulnerability may render his incarceration more onerous but he submitted that the state of the evidence would only allow an insignificant allowance on account of this factor.

57. [239]

    The Court accepts that the existence of the pandemic over some years is relevant to the assessment of an appropriate sentence. Corrective Services NSW imposed a number of protective measures to prevent and isolate any outbreak of COVID-19 amongst the prison population. These conditions included suspending visits to inmates, restricting travel between and within correctional facilities, and restricting access to social activities. These measures, though designed to protect inmates against contracting the virus, necessarily negatively impacted the quality of life enjoyed by the offender. The impact, however, is difficult to quantify with any degree of specificity. Nonetheless, I take the pandemic into account as a matter to synthesise on sentence.

58. [240]

    I accept too that the offender’s time in custody has been onerous because of his schizophrenia. Happily, his mental state appears to have recently improved. Notwithstanding that comment, I take his mental and physical ailments into account as matters that are relevant to imposing an appropriate sentence.

59. [241]

    Mr Quilter observed that Mr Bushell has been on remand for almost eight years in relation to the drug offences and more than six years and eight months for the manslaughter. He submitted that, apart from the late pleas of guilty to counts 2 and 3 of the drug offences, the delay has been entirely beyond Mr Bushell’s control. The Crown did not disagree. I accept that the delay is an additional factor to take into account on sentence.

60. [242]

    As indicated earlier, I have been asked to take an offence into account on a Form 1 basis when sentencing the offender, the details of which I have already set out above. In this matter, this has the effect of slightly increasing the sentence that would otherwise have been imposed. In this case, given what I have already said about general deterrence, the increase operates to recognise the community’s entitlement to retribution for the Form 1 offence, although the focus remains on the primary offence. I have taken this offence into account and I have carefully considered s 33 of the Sentencing Act and the judgment of Spigelman CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518.

61. [243]

    Both Mr Taylor and Mr Quilter accepted that the judgment of Flannery SC DCJ was the appropriate sentence for me to look at on parity with respect to the drug offences (there being two other co-offenders whose roles were significantly less serious). Her Honour sentenced Mr Tozer to an aggregate term of 9 years with a non-parole period of 5 years and 9 months based on the following indicative sentences:-

    1. (1)

       Count 1: 7 years and 6 months.

    2. (2)

       Count 2: 8 years.

    3. (3)

       Count 3: 7 years.

62. [244]

    Mr Quilter helpfully summarised the main findings made by her Honour as follows:-

63. [245]

    Mr Quilter submitted that Mr Bushell had a less significant role than Mr Tozer and pointed to his assertion to Dr Furst that he would “do what John [Tozer] said”. In his written submissions, Mr Taylor submitted that Mr Tozer gave directions to Mr Kupelian and at least to some degree to Mr Bushell, and agreed that Mr Tozer’s culpability was higher than that of Mr Bushell. Mr Quilter also relied on Mr Bushell’s mental condition which he submitted was more significant than Mr Tozer’s when considering the appropriate level of punishment. It was submitted that other aspects of Mr Bushell’s and Mr Tozer’s subjective cases were relatively similar, although it was noted that Mr Tozer experienced a significant medical condition (myocarditis) in custody. I note too that Mr Tozer was a victim of child sexual assault.

64. [246]

    With respect to the manslaughter, the Crown pointed to the fact that Mr Bushell administered the injection whilst Mr Tozer provided the cocaine and heroin. Further, Mr Taylor submitted that whilst Mr Tozer took more of a leadership role in directing the movement of the deceased’s body, it was Mr Bushell who carried out the actual moving of the body. Mr Quilter submitted that there was little distinction between the criminality of Mr Bushell and Mr Tozer with respect to the manslaughter, but that Mr Bushell’s schizophrenia justifies a lesser sentence.

65. [247]

    The doctrine of parity on sentencing is a norm of equal justice and an essential element of the rule of law: Green v R; Quinn v R (2011) 244 CLR 462 at 28. The principle of equal justice requires, as far as the law permits, that like be treated alike.

66. [248]

    Taking into account the relativities and differences between the offending of Mr Bushell and his co-offender Mr Tozer, I am satisfied that the sentence I will impose is justified in light of the disparities in their respective offending, bearing in mind the qualitative and discretionary judgment of a sentencing judge.

67. [249]

    With respect to totality, the Crown submitted that there was no connection between the manslaughter offence and the drug offences. It was submitted that there should be significant accumulation because the offending consisted of two courses of conduct which were wholly separate. The drug offences were committed at a different house and involved different drugs and people (apart from the offenders themselves). The Crown submitted that both courses of conduct were grave and required stern punishment.

68. [250]

    Mr Quilter drew the Court’s attention to the fact that the four offences occurred within a relatively confined period of a number of months and that the drug offences had the hallmarks of an ongoing episode of criminality. It was submitted that substantially concurrent sentences would be appropriate for the drug offences, and it was accepted that there must be some (limited) accumulation for the manslaughter. Both the Crown and Mr Quilter accepted that an aggregate sentence was appropriate.

69. [251]

    A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending.

70. [252]

    This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative. The ultimate sentence must be appropriate to the totality of the offender’s offending and his personal circumstances.

71. [253]

    I have also considered the principle of proportionality.

72. [254]

    With respect to special circumstances, Mr Quilter submitted that they should be found as a result of Mr Bushell’s burdensome custodial experience and the desirability of a long period of supervision to manage his mental illness, substance use and other social issues.

73. [255]

    Given the terms of s 54B(3) of the Sentencing Act, I indicate that my reasons for deviating from the standard non-parole period are the special circumstances that I find, that is the offender’s need for an extended period of supervision on parole to manage his mental illness and his accommodation requirements in light of his past homelessness. I have deviated to a ratio of 66.6% because of those special circumstances. To the extent that I have referred to these factors when arriving at the head sentence, I do not double count them. Factors may be (and in this case are) relevant to both the total sentence and the length of the non-parole period. In Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 at 531, Mason CJ and McHugh J said:-

74. [256]

    I find special circumstances for the reasons stated.

75. [257]

    Having considered all the possible alternatives, I am satisfied that the s 5 threshold of the Sentencing Act has been crossed. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

76. [258]

    I have taken into account the various purposes of sentencing under s 3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offending and this offender highlight how the various purposes of sentencing pull in competing directions – especially given, in my opinion, the offender’s need for psychiatric review and substance abuse rehabilitation.

77. [259]

    As the High Court said of s 3A in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [20]:-

78. [260]

    The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the Court, including the facts surrounding the commission of the offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guidepost of the maximum penalties, the standard non-parole periods (with respect to the drug offending) and the factors referred to in s 21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”).

79. [261]

    I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s 53A of the Sentencing Act. I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved. Taking all matters into account, as I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment of 12 years with a non-parole period of 8 years.

80. [262]

    As required by s 53A(2)(b) of the Sentencing Act, the indicative sentences I would have imposed are as follows:

    1. (1)

       For the offence of manslaughter contrary to s 18(1)(b) of the Crimes Act, I would have imposed a sentence of 5 years and 3 months after a discount of 25% for the plea of guilty.

    2. (2)

       For the offence of supply large commercial quantity of prohibited drug (Count 1) contrary to s 25(2) of the DMT Act, I would have imposed a sentence of 6 years and 9 months with a non-parole period of 4 years and 3 months. This term has been reduced by a discount of 25% for the plea of guilty.

    3. (3)

       For the offence of manufacture large commercial prohibited drug (Count 2) contrary to s 24(2) of the DMT Act, taking into account the matter on the Form 1, I would have imposed a sentence of 7 years and 7 months with a non-parole period of 4 years and 9 months. This term has been reduced by a discount of 15% for the plea of guilty.

    4. (4)

       For the offence of supply large commercial quantity of prohibited drug (Count 3), contrary to s 25(2) of the DMT Act, I would have imposed a sentence of 6 years and 4 months with a non-parole period of 4 years. This term has been reduced by a discount of 15% for the plea of guilty.

81. [263]

    Mr Bushell, please stand.

82. [264]

    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.

83. [265]

    I impose an aggregate sentence of imprisonment of 12 years with a non-parole period of 8 years.

84. [266]

    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.

85. [267]

    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.

Mr Tozer

1. [268]

   The Crown submits that the objective seriousness of the manslaughter is high, and at least within the mid-range, for the following reasons:-

   1. (1)

      The nature of the criminal liability of Mr Tozer set out in his Sentencing Facts;

   2. (2)

      The offence took place in the context of the illegal manufacture of methylamphetamine;

   3. (3)

      The deceased was in a house in a remote location and the speed of death meant that he was at grave risk of not obtaining life saving medical assistance (had it been sought);

   4. (4)

      Mr Tozer made no attempt to seek medical assistance; and

   5. (5)

      Mr Tozer concealed the circumstances in which the death occurred, in particular directing Witness A to move the deceased’s body.

2. [269]

   Mr Djemal submitted that the offending is “at the bottom of the range of seriousness for manslaughter offences”. In summary, Mr Djemal submitted that the Court would take the following into account:-

   1. (1)

      Mr Tozer’s liability was one act of assistance in providing prohibited drugs in the context of shared drug and alcohol use;

   2. (2)

      All three individuals involved had previously experienced and survived drug overdoses;

   3. (3)

      The deceased and Mr Bushell shared the same syringe/speedball;

   4. (4)

      Mr Tozer was one of the deceased’s closest friends and had not intended to cause him harm;

   5. (5)

      The overdose was a “complete surprise” to Mr Tozer;

   6. (6)

      The deceased was not naive to needles or injections;

   7. (7)

      The deceased was consuming oxycodone tablets “like smarties” and was addicted to opioids;

   8. (8)

      It was not the first time that the deceased had taken heroin;

   9. (9)

      Mr Tozer provided an account to Witness A shortly after the event in which he explained that he tried to revive the deceased; and

   10. (10)

       Whilst Mr Tozer was not forthright with the deceased’s family and police, he disclosed as much as he could without revealing the circumstances of the drug manufacture.

3. [270]

   With respect to the overdose being a complete surprise, Mr Djemal observed that Mr Tozer was seen in a Toyota travelling away from Oberon at 4.49am on Sunday morning. This, coupled with the fact that the deceased had told his wife that he would not be back until Monday, Mr Djemal submitted, supported the assertion that the event was completely unplanned.

4. [271]

   Mr Djemal submitted that, with respect to the location of the offending being in a remote house, the deceased had organised it rather than Mr Tozer. He also submitted in answer to the Crown’s submission regarding medical assistance, that I could and should accept that there was an attempt to assist the deceased. He conceded that no call for medical assistance was made. However, Mr Djemal submitted that this would not factor greatly into the assessment of objective seriousness, given the circumstances of manufacturing illicit drugs in which context the event occurred.

5. [272]

   Further, Mr Djemal submitted that the deceased’s body was moved so that it would be found (which is an agreed fact). He said that had the deceased’s body remained where he died, it might have been a matter of weeks or months before it was located. He referred to the statements made by Witness A set out in Ms Fahmy’s affidavit with respect to the motive behind moving the deceased’s body away from the Oberon premises, which he said I would accept.

6. [273]

   I repeat what I have said in paragraphs [171]-[195] when dealing with consent and the objective seriousness of the manslaughter with respect to Mr Bushell. Those paragraphs are pertinent to the finding I make with respect to objective seriousness of the manslaughter with respect to Mr Tozer. It was accepted by Mr Djemal, that notwithstanding that Mr Tozer’s liability was as an accessory at the fact rather than the principal, in circumstances where he was the one who brought the drugs that were injected by Mr Bushell, Mr Tozer’s criminality was substantially similar if not identical to that of Mr Bushell.

7. [274]

   I do not put the objective seriousness of this manslaughter on a notional range. It is clearly not as serious as other instances of manslaughter, particularly in light of the finding I have made with respect to consent. However, the offending is objectively serious, as it concerns the unlawful killing of Mr Ciano by an unlawful and dangerous act. It is accepted that the act was dangerous because the offender realised that it exposed the deceased to a risk of serious harm. That risk eventuated.

8. [275]

   It was agreed between the parties that, in accordance with s 25E of the Sentencing Act, Mr Tozer is entitled to a 25% discount by reason of his prior offer to plead guilty to manslaughter.

9. [276]

   The Crown submitted that Mr Tozer’s criminal history does not assist him. Mr Djemal conceded this point, noting that Mr Tozer had a limited but serious criminal history.

10. [277]

    Mr Tozer is therefore not entitled to leniency on account of his prior criminal history.

11. [278]

    The Crown submitted that Mr Tozer’s involvement in the events immediately after the death of the deceased was inconsistent with remorse. However, the Crown conceded that he now expresses remorse and an acknowledgement of harm, and he noted Mr Tozer’s letters to the Court and to his mother. On that basis, it was conceded that it is open to the Court to find that Mr Tozer was remorseful, although he submitted that I might approach the question of remorse with some scepticism as the offender did not give evidence.

12. [279]

    Mr Djemal relied upon a combination of factors to demonstrate that Mr Tozer has exhibited remorse:-

    1. (1)

       Multiple plea offers over time, demonstrating an early and ongoing desire to take accountability;

    2. (2)

       The plea of guilty, noting that the Crown case could never have been said to be strong;

    3. (3)

       Mr Tozer’s letter to the Court which includes an apology to the deceased’s family and demonstrates a level of maturity and reflection;

    4. (4)

       Mr Tozer’s letters to his mother which demonstrate that he harbours regret for his lifestyle;

    5. (5)

       Statements made by Mr Tozer to Ms Cullen, set out in her report;

    6. (6)

       Statements made by Mr Tozer to Ms Jeffress to the effect that he was upset about the deceased’s death and that he wished to go to his funeral; and

    7. (7)

       Mr Tozer’s voluntary participation in custodial programs and opioid substitution therapy.

13. [280]

    I am required to determine whether or not Mr Tozer is remorseful as at the date of this sentence. Taking into account all matters, I find that he is remorseful. I will take that into account as a matter to synthesise on sentence.

14. [281]

    Mr Tozer has been in custody referable to the drug offences since 7 March 2018. He has been in custody referable to the manslaughter (in addition to the drug offences) since 26 July 2018. Her Honour Flannery SC DCJ sentenced Mr Tozer for the drug offending on 8 March 2024, six years after his arrest for those offences. His non-parole period for that offending expired on 6 December 2023. He has remained in custody.

15. [282]

    Mr Djemal submitted that Mr Tozer’s background can properly be described as a “deprived upbringing” and attracted the well-known principles set out in Bugmy and other cases, which was conceded by the Crown.

16. [283]

    Mr Djemal submitted that the following factors in combination reduce Mr Tozer’s moral culpability, none of which were disputed by the Crown (and are largely corroborated by Mr Bushell):-

    1. (1)

       Substance and alcohol abuse were commonplace in Mr Tozer’s family home and drug addiction was normalised;

    2. (2)

       Mr Tozer was exposed to intravenous drug use by his father at age 11. By the time he was a teenager, his father would put “speed” in a syringe and “squirt it in his mouth”;

    3. (3)

       This period coincided with Mr Tozer’s truancy from school, polydrug abuse and his entry into the criminal justice system at 17 years of age. It was noted that he struggled with reading and writing, and left school in Year 9; and

    4. (4)

       Mr Tozer was exposed to “extreme and regular violence” at the hands of his father, whose aggression was also directed toward Mr Tozer’s sister and mother, including being “chased up the street” and knocked unconscious.

17. [284]

    These factors, Mr Djemal submitted, also reduce the significance of general deterrence in the sentencing exercise.

18. [285]

    Mr Djemal submitted that Mr Tozer’s history of sexual assault during his adolescence and his subsequent mental health and increasing drug abuse issues, were factors which also reduce his moral culpability, in addition to the Bugmy factors noted in [283] above.

19. [286]

    In particular, Mr Djemal relied upon the history set out in Ms Cullen’s report and summarised at [116]-[137] above. Mr Djemal noted Mr Tozer’s early introduction to extensive drug use, including intravenous use, and the continuation of that use throughout much of his time in incarceration. He drew attention to the history of Mr Tozer’s involvement with a motorcycle gang, the corresponding use of illicit drugs, both in and out of custody, and the escalation of his abuse and addiction leading up to the offending. Mr Djemal submitted that Mr Tozer’s drug use materially contributed to his decision making at the time of the offence.

20. [287]

    Mr Djemal observed that Mr Tozer has been diagnosed with complex PTSD, severe opioid use disorder and severe amphetamine-type stimulant use disorder. The drug related disorders were present at the time of offending and are currently in sustained remission (which favour his rehabilitation). He submitted that there was a link between Mr Tozer’s experience of sexual assault in his adolescence, his subsequent mental health and drug abuse issues, which led to his early contact with the criminal justice system, all of which were commented upon by Ms Cullen. Mr Djemal also referred to the findings set out in Ms Barhon’s report, in particular Mr Tozer’s low average IQ and his performance in the average to low average range across most tasks of executive function.

21. [288]

    With respect to Mr Tozer’s drug abuse and addiction, Mr Djemal ultimately made the following submission:-

22. [289]

    It was submitted that Mr Tozer’s mental health issues ought to be considered in addition to his childhood of disadvantage, as a matter that diminished his moral culpability for the offending.

23. [290]

    In my opinion, the offender’s mental health issues, his drug abuse issues, his background of disadvantage and his experience of sexual abuse as an adolescent are interrelated, and so I will deal with them together. The Crown, appropriately, did not dispute that the offender suffered from complex PTSD likely arising from sexual abuse. Neither did he dispute that the offender had a background of disadvantage in the way described in the report of Ms Cullen.

24. [291]

    As to Mr Tozer’s exposure to domestic and family violence from a young age, including exposure to significant drug use, I observe that the courts have long recognised that such exposure has long-lasting deleterious effects on a young person.

25. [292]

    As Fullerton J said in Perkins v R [2018] NSWCCA 62 at [99]:-

26. [293]

    In this case, that exposure led to the offender’s early drug abuse with significant drugs of addiction. To all of this must be added the sexual abuse suffered by the offender at a time when he was vulnerable, which may well be connected to the dysfunction in his household. All of this adds up to a significantly compromised background.

27. [294]

    As to childhood sexual abuse, the courts have long recognised that psychological and emotional damage to children from sexual abuse can be assumed: R v Tuala [2015] NSWCCA 8; 248 A Crim R 502 at [56]; R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 at [110]; R v MJB [2014] NSWCCA 195 at [49]; R v Erazo [2016] NSWCCA 139 at [44]. Most pertinently in this context, in Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 at [99]-[102] Hamill J said:-

28. [295]

    I do not doubt that sexual abuse is a substantial risk factor for the development of subsequent mental health problems, the type of which are present in this case and which were discussed at length by Ms Cullen and for which there is corroborative evidence in the records of Justice Health. It follows that the offender developed mental health problems that are temporally connected with the abuse he suffered at a young age. I accept Ms Cullen’s diagnosis of complex PTSD.

29. [296]

    In my opinion, the offender’s significant and largely untreated mental health issues are so intertwined with the elements of disadvantage set out above, that his mental health cannot be sensibly disentangled from the deprivation he has suffered throughout his life from the earliest age.

30. [297]

    It was largely conceded by Mr Djemal that the offender’s mental health issues did not cause his offending. However, in my view, the language of the common law and its interaction with concepts relating to mental health is unhelpful in Mr Tozer’s case. I repeat paragraphs [227]-[228] above, as follows. In Luque, Hamill J said at [114]:-

31. [298]

    As I have said, in this passage, his Honour was picking up some of the language and concepts set out in the well-known passage of De La Rosa at [177].

32. [299]

    In this particular case, in my opinion, the offender’s mental illness in combination with other factors reduces his moral culpability.

33. [300]

    In my opinion there is a clear association, or a bright line between, or a co-relationship with or a nexus between the offender’s mental health issues and his drug abuse issues, the sexual abuse he suffered as an adolescent, and his childhood exposure to domestic and family conflict and violence that whilst not amounting to causation, comes perilously close and are likely indirect contributions to his offending. In my opinion, in all of the offender’s circumstances, because of the combination of the disadvantages he has suffered, he was unable to make choices in the same way as an average person at the time of the offending.

34. [301]

    I must determine whether the disadvantage and adversity suffered by Mr Tozer reduces his moral culpability. In my opinion, there is more than ample indicia, which I do not arrange in any hierarchy. There was some discussion about whether Mr Bushell’s moral culpability was more appreciably diminished than Mr Tozer’s. In my view, it is not possible to meaningfully compare family dysfunction, schizophrenia, homelessness and drug addiction on the one hand with family dysfunction, early exposure to drugs of addiction, complex PTSD and sexual abuse on the other. To do so would diminish the adverse experience of one or the other. Notwithstanding that comment, in my opinion Mr Bushell’s moral culpability for the manslaughter is more significantly diminished than Mr Tozer’s, on account of his schizophrenia and associated mental health issues. In any event, in Mr Tozer’s case there is abundant evidence to establish the offender’s background of significant deprivation, and I give it full weight in this sentencing exercise: Bugmy at [44]; see also Hoskins at [57].

35. [302]

    I repeat the oft cited, sage quote of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2 at [69]:-

36. [303]

    Mr Tozer’s is such a case. Taking into account the limited emotional resources of the offender and the trauma Mr Tozer has experienced, it is perhaps unsurprising that the tragic events the subject of these proceedings have manifest themselves. In my opinion, Mr Tozer’s moral culpability is reduced “to an extent”, to quote Flannery SC DCJ. It is again important that the victims understand that this finding does not extinguish Mr Tozer’s moral culpability for the unlawful homicide of Mr Ricky Ciano. It does not, and he bears responsibility for the commission of that offence. My finding is that his moral culpability is diminished, which I will take into account as a matter to synthesise on sentence.

37. [304]

    The Crown submitted that it would be difficult to be confident that Mr Tozer will not reoffend and that he will successfully rehabilitate.

38. [305]

    Mr Djemal submitted that the Court should conclude that Mr Tozer has good prospects of rehabilitation. It was submitted that the assessment of Mr Tozer’s prospects ought to take into account three important matters: first, his mental health diagnoses and the uncontroversial fact that his drug addiction is now in remission; second, his genuine expression of remorse; and third, his need for continuing treatment in the community. In that regard, Mr Djemal relied upon the findings of Ms Cullen in relation to Mr Tozer’s proactivity in addressing his substance misuse, his abstinence for the past three years and the protective factors informing Mr Tozer’s prospects of rehabilitation.

39. [306]

    Mr Djemal also referred me to Flannery SC DCJ’s remarks on sentence for the drug offences where she found reasonable prospects of rehabilitation. Her Honour made that finding more than one year ago, and it was submitted that the uncontroverted evidence is that Mr Tozer has continued on a positive path to rehabilitation.

40. [307]

    I cannot on all the evidence find that Mr Tozer will successfully rehabilitate and that he will avoid reoffending. I note Ms Cullen’s frank comments in that regard. However, I share her guarded optimism, particularly if he remains abstinent and receives treatment for his psychiatric and substance abuse issues and if he is vindicated in his civil proceedings. In my view, should Mr Tozer avail himself of programmes, therapies and treatments, he has guardedly reasonable prospects of rehabilitation. In my opinion, if he successfully rehabilitates, his risk of reoffending will significantly diminish.

41. [308]

    I accept that because of Mr Tozer’s mental illness, general deterrence does not loom large on this sentence. It is not, however, eliminated. Taking into account Mr Tozer’s criminal history, the same can be said for specific deterrence.

42. [309]

    The Crown conceded that it was open to find that Mr Tozer’s complex PTSD has made his incarceration more onerous, but he submitted that any allowance would not be significant.

43. [310]

    Mr Djemal observed that Mr Tozer had been in custody during the entirety of the COVID-19 pandemic and it ought to be taken into account as a matter to synthesise on sentence, as the Courts have taken judicial notice of the adverse effects of the pandemic on inmates in custody. He further submitted that Mr Tozer’s experience with COVID-19 was unique and could properly be described as exceptional. In that regard, he relied on the Justice Health and Prince of Wales Hospital records which are set out above, and which describe a long and continuing history of myocarditis caused by COVID-19 contracted in custody.

44. [311]

    In oral submissions, the Crown conceded that the Court could afford Mr Tozer some reduction in his sentence on account of the considerations outlined by Mr Djemal.

45. [312]

    I accept that both Mr Tozer’s complex PTSD and his experience with COVID-19 and its effects have made his time in custody more onerous. I take it into account as a matter to synthesise on sentence.

46. [313]

    Similar submissions were made in relation to delay in both Mr Bushell’s and Mr Tozer’s matters. Mr Djemal observed that a period in excess of 8 years has passed since the offending and almost 7 years since Mr Tozer was charged. He submitted that the delay was through no fault of Mr Tozer’s and further that the delay in these proceedings delayed Mr Tozer’s sentence proceedings for the drug offences, which had the effect that Mr Tozer was a remand inmate for all but one year of his time in custody. Mr Djemal submitted that this has resulted in Mr Tozer being unable to progress through the process of classification, as he would have otherwise.

47. [314]

    Mr Djemal relied upon Ms Cullen’s report to submit that the delay has compounded Mr Tozer’s grief, perpetuated his underlying complex PTSD and motivated his drug misuse during his initial period of incarceration. He also submitted that the delay was relevant to the question of rehabilitation (in the sense that weight ought to be given to his current progress) and that it moderates general deterrence.

48. [315]

    That there has been significant delay cannot be disputed. It is less than ideal for an inmate to be on remand for a significant period for reasons advanced by both Mr Djemal and Mr Quilter on behalf of Mr Bushell. I accept that the delay is a factor to take into account on sentence.

49. [316]

    The Crown’s submissions on parity with respect to Mr Bushell were repeated in Mr Tozer’s case. I have already addressed the offenders’ respective roles and relative culpability which I do not repeat.

50. [317]

    The Crown submitted that there was no connection between the manslaughter and drug offences, and that, if sentenced for all offences together, there would be significant accumulation. In that respect, the Crown repeated the submissions made in Mr Bushell’s case. I observe that the manslaughter (which itself occurred on the premises of a clandestine drug laboratory) happened in the middle of the dates of the drug offending. In oral submissions, the Crown conceded that there would have to be some concurrency because of totality.

51. [318]

    Mr Djemal submitted that the Court should adjust the commencement of the sentence so as to ensure that the resulting combined sentence is not crushing.

52. [319]

    I have attempted to ensure that Mr Tozer’s and Mr Bushell’s sentences have a proper and due proportion with each other so that neither wears the “badge of unfairness”. It is fair to say that both sentencing exercises are significantly complicated by having to accumulate on an existing sentence on one hand (in the case of Mr Tozer) and by imposing an aggregate sentence on the other (in the case of Mr Bushell). I will commence Mr Tozer’s sentence on the date on which his non-parole period expired, ie on 6 December 2023.

53. [320]

    The Crown did not make any submissions about special circumstances. However, in the fair way in which he approached moral culpability and the offender’s subjective case, it must be presumed that he did not, and could not cavil against such a finding. Mr Djemal submitted that Mr Tozer’s history of drug addiction and mental health issues justified a longer period on parole to ensure that he remains abstinent, receives adequate medical treatment and to ensure that he is able to meaningfully and lawfully participate in the community. He also pointed to what he submitted was a real risk of Mr Tozer being institutionalised, which he submitted by itself justified a finding of special circumstances, bearing in mind Mr Tozer’s criminal history, Flannery SC DCJ’s sentence and the sentence that I will impose.

54. [321]

    I make a finding of special circumstances, based on the matters identified by Mr Djemal, and with which Mr Taylor did not cavil.

55. [322]

    I acknowledge that notwithstanding my finding of special circumstances, the non-parole period for Mr Tozer’s total effective sentence will result in a ratio of 75.5%. Just because a judge makes a finding of special circumstances, does not mean that a judge must vary the statutory ratio, although that is usually the case: see for example Heron v Regina [2006] NSWCCA 215 at [31] per Hoeben J, as his Honour then was, and with whom Mason P and Kirby J agreed. In the present case, the statutory ratio has not been varied because of the accumulation on the existing sentence and the need to ensure that the total period that the offender spends in custody reflects his overall criminality.

56. [323]

    Having considered all the possible alternatives, I am satisfied that the s 5 threshold of the Sentencing Act has been crossed. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

57. [324]

    I have taken into account the various purposes of sentencing under s 3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. Like Mr Bushell, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions – especially given, in my opinion, the offender’s need for counselling and ongoing drug rehabilitation.

58. [325]

    The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the Court, including the facts surrounding the commission of the offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guidepost of the maximum penalty and the factors referred to in s 21A of the Sentencing Act. I am required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances: Markarian.

59. [326]

    Having considered all of the matters I have referred to in this sentence judgment, after allowing for a discount of 25% for the plea of guilty, I impose a sentence of imprisonment of 5 years and 6 months. Without the discount, the sentence would have been 7 years and 4 months. I impose a non-parole period of 2 years and 9 months.

60. [327]

    Mr Tozer, please stand.

61. [328]

    Mr Tozer, I convict you of the offence of manslaughter contrary to s 18(1)(b) of the Crimes Act.

62. [329]

    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.

63. [330]

    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.

64. [331]

    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.