R v Tozer [2003] NSWCCA 72

R v Tozer [2003] NSWCCA 72

Although the sentencing judge should have made clearer any Ellis allowance and should have more explicitly explained the reasoning on totality, the sentences imposed were not excessive. The sentence for the 15 December armed robbery was not excessive when full weight was given to the applicant's admissions, the twenty-five percent discount for the 18 December offences was within discretion given the strong Crown case, no justified parity grievance arose because the applicant's total criminality was greater than McNamara's, and the aggregate term and non-parole period did not warrant interference under s 6(3) of the Criminal Appeal Act.

Jurisdiction
Australia
Judgment Date
27 March 2003
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Severity of Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['armed Robbery' 'driving a Conveyance Without Consent' 'excessive Sentence' 'guilty Plea Discount' 'ellis Discount' 'parity' 'accumulation and Totality']
['criminal Law' 'sentencing' 'criminal Appeals'] ['armed Robbery' 'driving a Conveyance Without Consent' 'excessive Sentence' 'guilty Plea Discount' 'ellis Discount' 'parity' 'accumulation and Totality']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Severity of Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentences imposed for two armed robberies and driving a conveyance without consent were excessive.' "Whether the sentencing judge failed to allow a significant added element of leniency under R v Ellis for the armed robbery disclosed by the applicant's admissions." "Whether the sentencing judge failed to give sufficient weight to the applicant's guilty pleas, utilitarian benefit and remorse." 'Whether the sentencing judge failed to apply principles of accumulation, concurrence and totality stated in Pearce v The Queen.' 'Whether the applicant had a justified sense of grievance by reason of parity with the co-offender McNamara.' 'Whether some less severe sentence was warranted in law under s 6(3) of the Criminal Appeal Act.']

Ratio Decidendi

Although the sentencing judge should have made clearer any Ellis allowance and should have more explicitly explained the reasoning on totality, the sentences imposed were not excessive. The sentence for the 15 December armed robbery was not excessive when full weight was given to the applicant's admissions, the twenty-five percent discount for the 18 December offences was within discretion given the strong Crown case, no justified parity grievance arose because the applicant's total criminality was greater than McNamara's, and the aggregate term and non-parole period did not warrant interference under s 6(3) of the Criminal Appeal Act.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']