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District Court 29 March 2021

R v TOYER (NO 2)

[2021] NSWDC 92

Homicide
SENTENCING PENALTIES NON PAROLE PERIOD PRINCIPLES TO BE APPLIED.

Citation: R v Toyer (No 2) [2021] NSWDC 92
Court: District Court of New South Wales
Date: 29 March 2021
Judge: Lerve DCJ

Background

This decision is a companion to an earlier sentencing judgment, R v Toyer [2021] NSWDC 69, in which the offender was convicted of manslaughter. In that earlier decision, the court imposed a sentence of 22 months imprisonment and ordered that it be served by way of an Intensive Correction Order (ICO), a form of imprisonment served in the community under close supervision.

After the sentence was handed down, it came to the court's attention that an ICO was not lawfully available for manslaughter. Under section 67(1) of the Crimes (Sentencing Procedure) Act 1999, an ICO cannot be imposed for that offence. The court acknowledged the error as fundamental and significant and moved to correct it.

A short further hearing took place on 29 March 2021. Both parties agreed the error could be corrected by reopening the proceedings under section 43 of the Crimes (Sentencing Procedure) Act 1999.

  • Whether the sentencing proceedings could be reopened under section 43 of the Crimes (Sentencing Procedure) Act 1999 to correct the unlawful imposition of an ICO for manslaughter.
  • What non-parole period should be set for the 22-month sentence, given that the underlying head sentence was to remain unchanged.
  • Whether special circumstances existed under the Act to justify a departure from the standard ratio between the non-parole period and the balance of term (ordinarily three-quarters of the total sentence as the non-parole period).

Decision

The court confirmed that imposing an ICO for manslaughter was contrary to law under section 67(1) of the Crimes (Sentencing Procedure) Act 1999. Relying on the High Court's analysis of section 43 in Achurch v The Queen (2014) 253 CLR 141, which explained that a "penalty contrary to law" includes a penalty that a court simply had no power to impose, the court was satisfied the proceedings could lawfully be reopened to correct the error.

The court noted, with evident regret, that the ICO was unavailable despite the offender being among the most suitable candidates for that disposition since the 2018 sentencing reforms. The court also observed a statutory anomaly: a Community Correction Order (which in general terms operates as a good behaviour bond and is a far less onerous sanction) remains available for manslaughter, while the more demanding ICO does not. Lerve DCJ acknowledged the error without qualification as his own, and expressly declined to attribute any blame to counsel.

The 22-month head sentence was not disturbed. The court then turned to the non-parole period. Under the standard statutory formula, the non-parole period is set at three-quarters of the total sentence. A court may depart from that ratio if it finds "special circumstances," a finding that justifies a longer period of supervised parole following release. The court found special circumstances on the facts, resulting in a non-parole period of 12 months (approximately 55% of the total sentence) rather than the standard 16 and a half months. The court noted the guidance from the NSW Court of Criminal Appeal in R v Boney [2008] NSWCCA 313, which observed that significantly departing from the standard ratio warrants scrutiny, but distinguished the present case on its particular facts. The court recommended that parole include a condition requiring the offender to accept supervision and mental health directions from the Department of Community Corrections.

Orders Made

  • The conviction recorded on 19 March 2021 stands.
  • The head sentence of 22 months (1 year 10 months) imprisonment imposed on 19 March 2021 remains.
  • A non-parole period of 12 months is imposed, commencing 29 March 2021 and expiring 28 March 2022.
  • A balance of term of 10 months commences 29 March 2022 and expires 28 January 2023.
  • The offender is to be released to statutory parole at the expiration of the non-parole period.
  • Parole is recommended to be subject to a condition requiring the offender to accept supervision by the Department of Community Corrections and to obey all reasonable directions relating to mental health.
  • A copy of the forensic report (Exhibit 1 on sentence) is to be forwarded to the Department of Community Corrections.
  • The sentence reflects a finding of special circumstances; the non-parole period represents approximately 55% of the total sentence.

Key Takeaways

  • Under section 67(1) of the Crimes (Sentencing Procedure) Act 1999, an Intensive Correction Order cannot be imposed on an offender convicted of manslaughter, regardless of how suitable that offender might otherwise appear for such a disposition.
  • A penalty imposed in breach of a statutory prohibition is a "penalty contrary to law" within the meaning of section 43 of the Act, and the High Court's analysis in Achurch v The Queen confirms that section 43 is available to correct such an error by reopening proceedings.
  • The District Court noted an apparent legislative anomaly: a Community Correction Order (a considerably less onerous outcome) remains available for manslaughter, yet the stricter and more supervisory ICO does not.
  • A finding of special circumstances permits a sentencing court to set a non-parole period below the standard three-quarter ratio, but R v Boney signals that substantial departures from that ratio require close examination and clear justification.
  • Where an error in sentencing is identified, the court retains the responsibility to reopen proceedings on its own initiative under section 43, and the correction does not affect existing rights of appeal.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43, 44, 67(1)

Cases
- Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10
- R v Boney [2008] NSWCCA 313
- R v Toyer [2021] NSWDC 69 (the primary sentencing decision in the same matter)