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Supreme Court 17 November 2023

R v Bushell (No 20)

[2023] NSWSC 1456

HomicideDrugs
CRIME SENTENCING MANSLAUGHTER FACTUAL DISPUTE ON SENTENCE 25% DISCOUNT DRUG CHARGES

Citation: R v Bushell (No 20) [2023] NSWSC 1456
Court: Supreme Court of New South Wales
Date: 17 November 2023
Judge: Rothman J

Background

The offender faced a murder charge relating to the death of a man in Oberon in February 2017, as well as three serious drug offences involving the manufacture and supply of large commercial quantities of methylamphetamine and MDMA at a Lethbridge Park premises between January and April 2017. He pleaded guilty to the drug offences and entered a plea of not guilty to murder but guilty of manslaughter.

On 5 September 2023, a jury acquitted the offender of murder but found him guilty of manslaughter. The drug offences each carry a maximum penalty of life imprisonment, with a standard non-parole period of 15 years. Manslaughter carries a maximum of 25 years with no standard non-parole period.

The offender had been in custody since 26 July 2018, though the sentence was ultimately backdated to his earlier arrest date of 28 April 2017. A Form 1 offence for possession of ephedrine as a precursor to drug manufacture was also to be taken into account in sentencing for the manufacture offence.

  • What facts should the court find, consistently with the jury's manslaughter verdict, regarding the circumstances of the deceased's death?
  • Whether the deceased consented to the injection of drugs that caused his death, and what standard of proof applied to that question at sentencing.
  • What weight should be given to hearsay evidence adduced at trial regarding the offender's co-accused's account of events?
  • What aggregate sentence, including discount for guilty pleas on the drug charges, properly reflected totality and parity principles across the four offences?
  • Whether special circumstances existed to justify a departure from the standard ratio between non-parole period and balance of term.

Decision

Factual findings on manslaughter. The court was required to make findings of fact not inconsistent with the jury's verdict. The offender submitted that the deceased had consented to being injected with heroin and cocaine while "partying," relying on a statement made by his co-accused (the offender's brother, Mr Tozer) to a witness identified as Witness A. Rothman J accepted that Witness A was truthful and generally reliable, but declined to accept that Mr Tozer had been truthful in making that statement to him. The court found there were good reasons why Mr Tozer would have been untruthful about those circumstances, and declined to accept that version even as a reasonable possibility.

Burden of proof on consent. The court clarified the applicable onus: any conclusion of fact held against the offender had to be proved beyond reasonable doubt, but it was not necessary for the offender to prove the deceased consented. It was sufficient if there was a reasonable doubt that the injection occurred without the deceased's consent. The submission that the court should sentence on the affirmative basis that the deceased consented was therefore framed on an incorrect allocation of the burden of proof.

Drug offences. The drug evidence was largely obtained through lawfully deployed surveillance devices. Police found approximately 1.928 kg of methylamphetamine in transit, a clandestine laboratory yielding 1.4442 kg of manufactured methylamphetamine, and over 1 kg of ephedrine as a precursor, among other substances. The offender's DNA and fingerprints connected him directly to both the supply and the manufacturing operation.

Sentencing. The court applied a 25% discount to the drug offences in recognition of the guilty pleas. Having regard to totality and parity principles, and finding special circumstances to justify a longer balance of term, Rothman J imposed an aggregate sentence of 18 years' imprisonment with a non-parole period of 12 years. The sentence was backdated to the date of arrest, 28 April 2017.

Orders Made

  • The offender was convicted of manslaughter (Oberon, between 10 and 14 February 2017).
  • The offender was convicted of supply of a large commercial quantity of methylamphetamine (Sydney, 26 to 29 April 2017).
  • The offender was convicted of manufacture of a large commercial quantity of methylamphetamine (Lethbridge Park, 13 January to 28 April 2017).
  • The offender was convicted of supply of a large commercial quantity of MDMA (Lethbridge Park, 13 January to 28 April 2017).
  • Aggregate sentence imposed: 18 years' imprisonment, comprising a non-parole period of 12 years commencing 28 April 2017 (concluding 27 April 2029) and a balance of term of 6 years (concluding 27 April 2035).
  • Special circumstances found.
  • The offender was advised of the potential application of the Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1).

Key Takeaways

  • At sentencing following a jury verdict, the court must make factual findings consistent with that verdict, with any fact adverse to the offender required to be proved beyond reasonable doubt.
  • Hearsay evidence is generally inadmissible at trial but the sentencing court is not bound by the rules of evidence; however, the court here declined to rely on a co-accused's self-serving, exculpatory out-of-court statement as a reliable account of events.
  • The correct approach to a consent-based sentencing argument is not to require the offender to prove consent affirmatively, but to ask whether there is a reasonable doubt that the relevant act occurred without consent.
  • A 25% discount applied to the drug offences in recognition of guilty pleas, with the overall sentence calibrated by reference to totality and parity principles across four serious offences.
  • Where special circumstances are found under the Crimes (Sentencing Procedure) Act 1999 (NSW), the non-parole period may be proportionally shorter than the standard ratio, resulting in a longer balance of term for supervision on parole.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(b) (manslaughter, maximum penalty)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 24A(1)(a), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14