Citation: Toller v R [2021] NSWCCA 204
Court: NSW Court of Criminal Appeal
Date: 27 August 2021
Judges: Macfarlan JA, Davies J, Beech-Jones J (all agreeing)
Background
The applicant, a fraud offender serving a sentence imposed in the District Court in April 2018, applied for leave to appeal against his sentence. He had pleaded guilty to 14 charges of obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900, involving the fraudulent obtaining of over $1.7 million from 14 victims. Many of the victims were elderly and financially vulnerable, having previously lost money to another fraudulent investment scheme. The applicant used the funds for gambling and personal expenses.
Judge Norrish QC sentenced the applicant to an aggregate term of 8 years' imprisonment with a non-parole period of 5 years commencing 27 June 2017. Indicative sentences for individual charges ranged from 12 months to 4 years, broadly reflecting the amount defrauded in each case.
Critically, the applicant expressly stated he did not challenge the length of the sentence as originally imposed. His sole complaint was that the COVID-19 pandemic had dramatically changed the conditions of his incarceration, denying him access to external leave programs and cutting him off from family in the United Kingdom and South Australia.
Legal Issues
- Whether the hardship caused to a prisoner by COVID-19 restrictions imposed after sentencing can found a basis for appellate intervention in the sentence.
- Whether this Court has power to intervene where post-sentence events have rendered custody more onerous, absent any error in the original sentencing exercise.
Decision
The Court of Criminal Appeal unanimously refused leave to appeal. Beech-Jones J, with whom Macfarlan JA and Davies J agreed, held that the applicant's complaints did not identify any error in the original sentence of the kind required to enliven the appellate power to intervene.
The general principle, confirmed in House v The King (1936) 55 CLR 499 and Betts v R (2016) 258 CLR 240, is that appellate intervention in sentencing requires established error in the original sentencing exercise. The long-established position, drawn from R v Munday (1981) 2 NSWLR 177, is that any review of a sentence in light of subsequent events that render prison conditions harsher is exclusively a matter for the executive government, not the courts.
The Court applied and endorsed the reasoning in Cabezuela v R [2020] NSWCCA 107, which confirmed that COVID-19 restrictions imposed after sentencing do not provide a basis for appellate interference where the sentence is not otherwise open to challenge. Even if substantially greater weight were given to the additional hardship of custody under pandemic conditions, no different sentence would properly follow in a case of this objective seriousness. The Court noted that the pandemic's impact on prisoners remained ongoing but observed this did not alter the applicable principles.
Orders Made
- Leave to appeal refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that post-sentence events rendering custody more onerous, including COVID-19 restrictions, do not constitute an error in the original sentencing exercise and cannot ground appellate intervention.
- A long-standing principle established in R v Munday (1981) holds that the hardship caused by changes to prison conditions after sentencing is exclusively a matter for the executive government, not for appellate courts.
- Upholding the refusal of leave, the Court applied Cabezuela v R [2020] NSWCCA 107, reinforcing that COVID-19 pandemic restrictions on prisoners do not provide a standalone basis to disturb an otherwise valid sentence.
- No error in the original sentencing exercise was identified, and the applicant expressly conceded the original sentence was not challenged on its merits.
- The objective seriousness of the offending, which targeted vulnerable and elderly victims and involved over $1.7 million in losses, was a relevant consideration in assessing whether a different sentence could properly follow even on a strong subjective case.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 53A
Cases
- Betts v R (2016) 258 CLR 240; [2016] HCA 25
- Borg v R; Gray v R [2020] NSWCCA 67
- Cabezuela v R [2020] NSWCCA 107
- Hoang v R [2020] NSWCCA 324
- House v The King (1936) 55 CLR 499
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- R v Munday (1981) 2 NSWLR 177
- Rae v R [2019] NSWCCA 284