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Supreme Court 16 December 2020

R v McCosker

[2020] NSWSC 1822

Homicide
CRIME SENTENCE MURDER JOINT CRIMINAL ENTERPRISE DECEASED SET ON FIRE TWICE SECOND TIME TO "FINISH HIM OFF"

Citation: R v McCosker [2020] NSWSC 1822
Court: Supreme Court of New South Wales
Date: 16 December 2020
Judge(s): R A Hulme J

Background

The offender, Troy Lee McCosker, was convicted by a jury of the murder of Wade Still, a 24-year-old man, at Whitebridge on 20 August 2018. McCosker was 49 at the time. Both men were involved in illicit drug use, and the offender was also a low-level drug supplier. There was a documented history of animosity between them, including a home invasion by the deceased, subsequent retaliatory violence by the offender, and a belief by the deceased that the offender had been involved with his partner while he was in custody.

The fatal events unfolded in the early hours of 20 August 2018. The deceased had been set alight at a disused quarry in Oakdale Road, Whitebridge, following a confrontation with another man, referred to in the judgment by the pseudonym "Stone." Stone contacted the offender, who drove him away from the scene and then participated in a joint decision not to call an ambulance. Instead, the offender drove Stone to obtain more petrol and then transported him back to the quarry, where Stone poured petrol on the still-living victim and ignited it. The victim died from his injuries.

McCosker was tried separately from Stone, who had pleaded guilty and given evidence for the prosecution at McCosker's trial. The sentencing judgment addressed the appropriate penalty for McCosker, having regard to his role in the joint criminal enterprise, his personal circumstances, and the need for parity with Stone's sentence.

  • What was the appropriate sentence for McCosker, having regard to his role in the joint criminal enterprise that caused the victim's death?
  • How should the court treat McCosker's personal circumstances, including mental health disorders, drug dependency, and background?
  • Was McCosker entitled to the same sentencing discounts granted to Stone, particularly for remorse and cooperation with authorities?
  • How did the parity principle apply, given that Stone had received a 35% discount for his guilty plea and assistance to authorities?

Decision

Hulme J found that McCosker bore equivalent culpability to Stone in respect of the murder. Although Stone physically carried out the second burning, the offender was instrumental in the joint criminal enterprise: he drove Stone away from the scene, participated in the decision not to call an ambulance, drove Stone to obtain more petrol, and then returned with him to the quarry knowing the victim remained alive and helpless. That conduct made the offender an active participant in the decision to "finish off" the victim.

The court considered McCosker's personal circumstances, including diagnoses of Major Depressive Disorder, Stimulant Use Disorder, and Substance Use Disorder, as well as a difficult personal history involving drug use and family dysfunction. While these matters were taken into account, Hulme J found they did not substantially reduce the objective seriousness of the offending.

A critical distinction from Stone was that McCosker showed no genuine remorse and had contested the charge at trial. He was therefore not entitled to any discount for remorse, a guilty plea, or cooperation with authorities. The court was careful to note that his sentence was not increased because of his lack of remorse; rather, he simply did not receive the mitigation that favourable findings in those areas would have attracted.

Starting from the same pre-discount figure of 36 years applied to Stone, the court declined to apply any equivalent reduction. The result was a total sentence of 36 years, structured with a non-parole period of 27 years.

Orders Made

  • McCosker convicted of the murder of Wade Still at Whitebridge on 20 August 2018.
  • Sentenced to a total term of imprisonment of 36 years.
  • Non-parole period of 27 years, with a balance of term of 9 years.
  • Sentence to date from 22 August 2018.
  • Eligible for release on parole on 21 August 2045.

Key Takeaways

  • Where co-offenders bear equivalent objective culpability, the parity principle requires that any sentencing disparity be explicable by reference to differences in subjective circumstances, such as remorse, plea, or assistance to authorities.
  • An offender who contests a charge at trial and demonstrates no genuine remorse is not entitled to the discounts that a co-offender received for pleading guilty and giving evidence for the prosecution, even if the starting sentence is the same.
  • The Supreme Court confirmed that declining to find favourable prospects of rehabilitation or remorse does not constitute an increase in punishment; it simply removes the basis for mitigation that would otherwise apply.
  • Active participation in a joint criminal enterprise can ground a murder conviction even where the offender did not personally inflict the fatal act, provided the offender's conduct materially advanced the enterprise.
  • Mental health disorders and substance dependency, while relevant to sentencing, did not substantially reduce the sentence where the objective gravity of the offending was extreme and no other mitigating factors applied.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 47 (laying an explosive substance with intent to cause grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E(3)

Cases:
- R v Stone [2020] NSWSC 1485 (sentencing of the co-offender, used as the parity comparator)