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Supreme Court 19 November 2007

R v Stacey Lea-Caton

[2007] NSWSC 1294

Assault & violenceHomicide
MURDER SPECIALLY AGGRAVATED KIDNAPPING TWO VICTIMS PRINCIPAL IN THE SECOND DEGREE PLEAS OF GUILTY ASSISTANCE TO THE AUTHORITIES

Citation: R v Stacey Lea-Caton [2007] NSWSC 1294
Court: Supreme Court of New South Wales
Date: 19 November 2007
Judge(s): Buddin J

Background

The offender pleaded guilty to four offences arising from events at a property in Nowra on 28 January 2006: the murders of Gregory Hosa (aged 56) and his wife Kathryn McKay (aged 44), and two counts of specially aggravated kidnapping of the same victims. The kidnapping charges alleged that the offender committed those offences in company with others and that actual bodily harm was occasioned to each victim.

The offender had originally been jointly charged with two other persons. After applications for separate trials were foreshadowed on behalf of his co-accused, the Crown elected to try the offender separately. A jury was empanelled and the trial was underway, though the Crown had not yet opened its case, when the offender entered his guilty pleas on 5 November 2007.

The offender was sentenced as a principal in the second degree, meaning his role and culpability fell to be assessed in that specific context. He had been in custody since his arrest on 29 January 2006, and the sentences were backdated to that date.

  • What weight should be given to the guilty pleas, having regard to their timing and the circumstances in which they were entered?
  • What discount, if any, applied for assistance provided to the authorities?
  • How did the standard non-parole period of 20 years for murder interact with the offender's role as a principal in the second degree?
  • How should the principle of totality be applied when sentencing across four serious offences involving two victims?
  • How should the kidnapping sentences be structured alongside the murder sentences, given the overlap in the underlying events?

Decision

Buddin J accepted the offender's evidence at the sentencing hearing as a credible account, supported by ERISP interviews, witness statements from the offender's sister and her husband, and photographs. The Crown did not challenge that account. The judge noted, however, that the alleged culpability of the co-accused remained to be determined, and took care to assess the offender's complicity in that context.

On the guilty pleas, the judge acknowledged that they were entered after a jury had been empanelled, which affected the available discount compared with an earlier plea. Some credit was nonetheless given, along with a separate discount for assistance provided to the authorities. Before those discounts were applied, the head sentence for each murder was assessed at approximately 30 years.

The standard non-parole period for murder under the Crimes (Sentencing Procedure) Act 1999 is 20 years, representing a midrange case. Buddin J assessed the offender's individual culpability, his role as a secondary party, and the various aggravating and mitigating features in determining a sentence below that benchmark. The judge also noted the objective gravity of the offending: two people were killed in what the court described as horrendous circumstances revealing a very considerable degree of callousness.

On totality, the court structured the sentences so that the kidnapping terms were absorbed within or ran concurrently with the murder sentences to avoid a crushing aggregate outcome while still reflecting the seriousness of the four individual offences. No non-parole period was imposed on either kidnapping count because of the concurrent murder sentences already carrying that component.

Orders Made

  • Specially aggravated kidnapping of Gregory Hosa: fixed term of 5 years, commencing 29 January 2006, expiring 28 January 2011 (no non-parole period imposed).
  • Murder of Gregory Hosa: 18 years imprisonment (non-parole period of 12 years 6 months; balance of 5 years 6 months), commencing 29 January 2006, expiring 28 January 2024; non-parole period expiring 28 July 2018.
  • Specially aggravated kidnapping of Kathryn McKay: fixed term of 5 years, commencing 29 January 2010, expiring 28 January 2015 (no non-parole period imposed).
  • Murder of Kathryn McKay: 18 years imprisonment (non-parole period of 12 years 6 months; balance of 5 years 6 months), commencing 29 January 2010, expiring 28 January 2028; non-parole period expiring 28 July 2022.
  • Total effective sentence: 22 years imprisonment.
  • Total effective non-parole period: 16 years 6 months; eligible for parole from 28 July 2022.

Key Takeaways

  • A guilty plea entered after jury empanelment, but before the Crown's opening, still attracts some discount, though materially less than an early plea would have warranted.
  • Where an offender is sentenced as a principal in the second degree, the standard non-parole period for murder operates as a reference point for a midrange case, but the offender's actual role and degree of culpability inform whether the sentence falls above or below that benchmark.
  • The totality principle required the Supreme Court to structure four serious sentences so that the aggregate did not become disproportionate, achieved here by commencing the murder sentences at staggered dates and declining to impose separate non-parole periods on the kidnapping counts.
  • Assistance to the authorities operates as a discrete mitigating factor, assessed separately from the guilty plea discount.
  • Callousness in the manner of offending remains a significant aggravating consideration, capable of supporting a substantial head sentence even where secondary liability and other mitigating factors are present.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 3A and 54A

Cases
- R v Simpson (2001) 53 NSWLR 704
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Way (2004) 60 NSWLR 178
- R v McNaughton (2006) 66 NSWLR 566
- Pearce v The Queen (1998) 194 CLR 610
- Cameron v The Queen (2002) 209 CLR 339
- York v R (2005) 225 CLR 466
- R v Markarian (2005) 228 CLR 357
- GAS v The Queen; SJK v The Queen (2004) 217 CLR 198
- Johnson v R (2004) 205 ALR 346
- R v Durocher-Yvon (2003) 58 NSWLR 581
- R v Previtera (1997) 94 A Crim R 76
- R v Tangye (1997) 92 A Crim R 455
- R v Hammoud (2000) 118 A Crim R 66
- R v Weldon and Carberry (2002) 136 A Crim R 55
- R v FD & JD (2006) 160 A Crim R 392
- R v SZ (2007) 168 A Crim R 249
- Additional cases as cited in the judgment