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Court of Criminal Appeal 22 June 2026

Tozer v R

[2026] NSWCCA 88

HomicideDrugs
CRIME APPEALS APPEAL AGAINST SENTENCE MANSLAUGHTER ACCESSORY AT THE FACT “SPEEDBALL”

Citation: Tozer v R [2026] NSWCCA 88
Court: NSW Court of Criminal Appeal
Date: 22 June 2026
Judges: N Adams CJ at CL, Dhanji J (principal judgment), Richardson J

Background

The appellant pleaded guilty to manslaughter arising from his role as an accessory at the fact in the death of another man at a clandestine drug laboratory in February 2017. His co-offender administered a fatal intravenous injection of a cocaine and heroin mixture (a "speedball") into the deceased, who had consented to the injection. The appellant supplied the drugs, was present at the time, took no steps to obtain medical assistance afterwards, arranged for the body to be moved away from the laboratory, and lied to the deceased's wife about his whereabouts.

The appellant was sentenced in the Supreme Court to 5 years and 6 months imprisonment with a non-parole period of 2 years and 9 months. That sentence was set to commence from 6 December 2023, the date the non-parole period of a pre-existing District Court sentence expired. That earlier sentence was 9 years (non-parole period of 5 years and 9 months) for large commercial drug supply and manufacture offences, some of which pre-dated and some of which post-dated the manslaughter. The combined effect was a total sentence of approximately 11 years and 3 months with a non-parole period of 8 years and 6 months.

The appellant sought leave to appeal on two grounds: first, that the sentencing judge erred in declining to impose a partially concurrent sentence; and second, that the manslaughter sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to impose the manslaughter sentence so that it ran concurrently, at least in part, with the non-parole period of the existing drug sentence.
  • Whether the sentence of 5 years and 6 months (non-parole period of 2 years and 9 months) was manifestly excessive, either viewed in isolation or having regard to its cumulative effect on the total time to be served.

Decision

Ground 1: Concurrency

Dhanji J found that while the manslaughter offence occurred in the same general context as the drug offending, it was discrete in character and distinct from it. The manslaughter involved the causing of a death, the concealment of that death, the removal of the body, and deception of the deceased's family. Those features set it apart from the commercial drug supply and manufacture offences. The circumstances did not compel the sentencing judge to impose any degree of concurrency between the manslaughter sentence and the non-parole period of the drug sentence.

Dhanji J also observed that the appellant's complaint under ground 1 did not identify a specific error of principle in the sentencing judge's exercise of discretion as to the commencement date. The real substance of the complaint was that the resulting sentence was excessive, which fell to be addressed under ground 2.

Ground 2: Manifest Excess

The court considered the sentence both in isolation and in terms of its practical cumulative effect. Viewed in isolation, the sentence was not unreasonable or plainly unjust, having regard to the seriousness of the outcome (death resulting from the risk taken by the appellant), the post-death concealment, and the mitigating factors including the appellant's significant background of deprivation, complex PTSD, severe substance use disorders, and the 25 per cent discount applied for the utilitarian value of his guilty plea.

Dhanji J accepted that the cumulative effect of the sentences was substantial: the combined non-parole period increased from 5 years and 9 months to 8 years and 6 months, and the total from 9 years to approximately 11 years and 3 months. The court acknowledged the non-linear increase in severity as sentences grow longer. However, that increase directly reflected the additional and distinct criminality of the manslaughter offence. The sentence was not, in those circumstances, unreasonable or plainly unjust, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that proximity of context between two sets of offending does not, of itself, require the sentencing court to impose concurrent or partially concurrent sentences; the character and distinctness of the offending remains the governing consideration.
  • Where an appellant challenges the commencement date of a sentence without identifying a specific error in the exercise of the sentencing discretion, the complaint is properly characterised as one of manifest excess rather than a freestanding discretionary error.
  • A sentence is not manifestly excessive merely because its cumulative effect on total time to be served is substantial, provided that effect reflects the addition of genuinely distinct criminality.
  • In assessing cumulative sentences, the court applied the principle from R v MAK; R v MSK that the severity of imprisonment increases at a non-linear rate as sentences lengthen, meaning the practical weight of an additional sentence grows the longer the existing sentence already is.
  • Mitigating factors including a disadvantaged childhood, serious adolescent trauma, complex PTSD and severe drug dependency disorders were accepted as reducing moral culpability and supported a finding of special circumstances, though they did not displace a fully cumulative structure where the offending was distinct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 24
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47
- Criminal Appeal Act 1912 (NSW), s 5
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 25

Cases
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Harris v R [2023] NSWCCA 44
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Bushell; R v Tozer (No 21) [2025] NSWSC 382
- R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
- R v White [2023] NSWSC 611
- R v XX [2009] NSWCCA 115; 195 A Crim R 38
- Redfern v R [2012] NSWCCA 178; 228 A Crim R 56