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Supreme Court 24 April 2025

R v Bushell; R v Tozer (No 21)

[2025] NSWSC 382

HomicideDrugs
SENTENCING MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT WHERE CO DRUG SUPPLY LARGE COMMERCIAL QUANTITY

Citation: R v Bushell; R v Tozer (No 21) [2025] NSWSC 382
Court: Supreme Court of New South Wales
Date: 24 April 2025
Judge: Weinstein J

Background

Two co-offenders, referred to here as Bushell and Tozer, appeared before Weinstein J for sentencing on a charge of manslaughter following the death of a man during a drug manufacturing operation at a rural property in Oberon, NSW, over the weekend of 11 to 13 February 2017. The deceased had organised the drug manufacturing session together with the offenders, and all parties were engaged in the manufacture of prohibited drugs when the death occurred. The manslaughter charge proceeded on the basis of an unlawful and dangerous act, with questions arising as to whether the deceased had consented to the administration of a prohibited drug.

Bushell faced additional charges: three counts of supplying or manufacturing a large commercial quantity of a prohibited drug (methylamphetamine and MDA), each carrying a maximum of life imprisonment and a standard non-parole period of 15 years. Tozer had been sentenced on equivalent drug charges by the District Court in March 2024 and appeared before the Supreme Court on the manslaughter charge alone.

Both men had protracted criminal histories in this matter. Bushell was convicted of manslaughter at trial in 2023, had that conviction quashed by the Court of Criminal Appeal in February 2025, and then pleaded guilty following retrial negotiations. Tozer pleaded guilty to manslaughter on 12 February 2025, which the Crown accepted in full satisfaction of the indictment.

  • Whether, and to what extent, the deceased's participation in the drug manufacturing operation and any consent to the administration of a prohibited drug was relevant to objective seriousness on the manslaughter charge
  • How to assess the moral culpability of each offender in light of significant subjective circumstances, including drug addiction, mental health conditions, and Bugmy considerations (the principle that severe disadvantage, particularly in childhood, may reduce moral culpability)
  • The appropriate sentences for Bushell on the drug offences, including the interplay between standard non-parole periods, the instinctive synthesis method, and the totality principle
  • Parity between the two co-offenders, noting that Tozer had already been sentenced on the drug matters and was now before the Supreme Court on manslaughter alone
  • Whether an aggregate sentence or separate sentences were appropriate for Bushell given two distinct courses of criminal conduct

Decision

Weinstein J sentenced both offenders, applying the instinctive synthesis approach confirmed in Markarian, by identifying all relevant facts and circumstances, including the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the factors in s 21A. The court considered the nature and circumstances of the manslaughter offending, the involvement of the deceased in the drug manufacturing enterprise, and the significant subjective cases of both men, including their addiction histories and mental health.

On parity, the court noted that Tozer had already been sentenced for the equivalent drug offences in the District Court, and the present proceedings concerned only his manslaughter conviction. This created a structural difference from Bushell's position, where an aggregate sentence was considered and separate sentences were ultimately applied across the two distinct courses of conduct. The court was careful to ensure that the sentences between the co-offenders did not produce unjustified disparity given their broadly comparable roles in the manslaughter.

Both men received a 25% discount on their manslaughter sentences for their pleas of guilty. For Tozer, the court imposed 5 years and 6 months imprisonment (reduced from a notional starting point of 7 years and 4 months) with a non-parole period of 2 years and 9 months. The court observed that the competing purposes of sentencing, particularly the tension between denunciation and rehabilitation, were especially pronounced given each offender's need for ongoing drug counselling and treatment. The court also noted the application of the Crimes (High Risk Offenders) Act 2006 (NSW) to the manslaughter conviction.

The full sentencing orders for Bushell on the drug counts are not reproduced in the available text, though the judgment confirms he was sentenced across four offences (including a Form 1 matter for possession of a precursor) as part of an instinctive synthesis that incorporated standard non-parole periods as guideposts.

Orders Made

  • Tozer convicted of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 (NSW)
  • Sentence of 5 years and 6 months imprisonment imposed, with a non-parole period of 2 years and 9 months
  • Sentence backdated to commence 6 December 2023; head sentence to expire 5 June 2029; eligible for parole from 5 September 2026
  • Sentence reduced by 25% for the plea of guilty
  • Tozer and his legal representatives directed to be advised of the Crimes (High Risk Offenders) Act 2006 (NSW) and its application to the manslaughter conviction

Key Takeaways

  • Where a deceased person was an active participant in the unlawful and dangerous act underlying a manslaughter charge, that participation and any consent to the administration of a prohibited drug is a relevant consideration in assessing the objective seriousness of the offending, though it does not excuse it.
  • Bugmy principles remain central to manslaughter sentencing: entrenched disadvantage, addiction, and mental health difficulties may reduce an offender's moral culpability even in serious homicide matters, and courts are required to weigh this against the other purposes of sentencing, including deterrence and denunciation.
  • Parity between co-offenders sentenced at different times and in different courts requires careful attention, particularly where one offender has already been sentenced on related charges and the two now face the same court on different terms.
  • Under the instinctive synthesis method, standard non-parole periods for the serious drug offences (15 years for large commercial quantity offences) serve as guideposts rather than fixed starting points, and the court must still weigh all relevant factors before arriving at an appropriate sentence.
  • A 25% guilty plea discount applied to both offenders on the manslaughter charge, reflecting the timing and utilitarian value of the respective pleas, consistent with established principles in NSW sentencing law.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 24A(1)(a), 25(2)
- Evidence Act 1995 (NSW), s 191
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases
- Markarian v The Queen (2005) 228 CLR 357 (instinctive synthesis approach to sentencing)
- Bugmy v The Queen (1990) 169 CLR 525; Bugmy v The Queen (2013) 249 CLR 571 (disadvantage and moral culpability)
- Muldrock v The Queen (2011) 244 CLR 120 (standard non-parole periods as guideposts)
- Green v R; Quinn v R (2011) 244 CLR 462 (parity in sentencing)
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- DS v R; DM v R (2022) 109 NSWLR 82
- Nasrallah v R (2021) 105 NSWLR 451
- R v Borkowski [2009] NSWCCA 102
- Gore v R; Hunter v R [2010] NSWCCA 330
- Heron v Regina [2006] NSWCCA 215
- R v Johnson (No 5) [2017] NSWSC 1169