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Court of Criminal Appeal 17 June 2022

McCosker v R

[2022] NSWCCA 127

Homicide

Citation: McCosker v R [2022] NSWCCA 127
Court: NSW Court of Criminal Appeal
Date: 17 June 2022
Judges: Beech-Jones CJ at CL; Adamson J; Bellew J

Background

The applicant was convicted by jury of murder following a joint criminal enterprise with a co-offender (referred to by the pseudonym Mr Stone). The offence involved the burning of the deceased on two occasions at a quarry in Whitebridge in August 2018. Mr Stone had initially caused burns to the deceased accidentally, then later returned to the scene with the applicant, where Mr Stone doused the deceased in petrol a second time and set him alight. The applicant drove Mr Stone to collect the petrol and transported him away from the scene after the second burning.

Mr Stone pleaded guilty in the Local Court and received a total sentence of 23 years and 4 months, representing a pre-discount sentence of 36 years reduced by 35 percent (25 percent for his plea and 10 percent for assistance to authorities). The applicant, having contested the charge and been convicted at trial, was sentenced to 36 years' imprisonment with a non-parole period of 27 years.

The applicant sought leave to appeal his sentence, arguing his culpability was less than Mr Stone's and that the sentencing judge made an unsupported factual finding about the time of the deceased's death.

  • Whether the sentence imposed on the applicant was disparate with the sentence imposed on Mr Stone, given the applicant contended his role was less culpable than that of his co-offender.
  • Whether the sentencing judge erred in finding that the deceased survived for approximately two hours after the second burning, in the absence of direct evidentiary support at the applicant's own sentence hearing.

Decision

Parity (Grounds 1, 2 and 3). The Court granted leave to appeal on the three parity grounds but ultimately dismissed the appeal. The sentencing judge found that the applicant had a motive to kill the deceased and played a key role in the commission of the murder, including driving the co-offender to collect petrol and returning him to the scene. On those findings, it was open to the judge to assess the relative culpability of both offenders as similar and, accordingly, to impose the same pre-discount sentence of 36 years on each. The difference in the final sentences reflected only the co-offender's reductions for his plea and assistance, not any difference in objective culpability.

Time of Death (Ground 4). The Court refused leave to appeal on this ground, describing it as unduly technical and devoid of merit. The finding that the deceased survived for approximately two hours after the second burning was supported by evidence. The time of death appeared in agreed facts drawn from the sentencing remarks in Mr Stone's case, which had been tendered without objection at the applicant's sentence hearing. The time of death was a matter of observable fact recorded by medical staff, not a matter of expert opinion requiring formal proof under the rules in The Queen v Olbrich. The applicant had not challenged this fact at the hearing, and no legitimate basis for doing so was apparent.

Orders Made

  • Leave to appeal granted in respect of grounds (1), (2) and (3).
  • Leave refused in respect of ground (4).
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge assessing parity between co-offenders is entitled to find similar culpability where the evidence supports it, even where the co-offender directly carried out the physical act of killing and the applicant played a facilitating role.
  • Where co-offenders are assessed as equally culpable, it is open to a sentencing court to impose the same pre-discount sentence on both, with differences in final sentences reflecting only discounts for plea and assistance.
  • Factual findings at sentence that are uncontested, observable as matters of record, and supported by tendered material are not treated as requiring formal proof under the Olbrich principle, which applies to disputed or uncertain factual matters.
  • The Court of Criminal Appeal confirmed that the tender of a co-offender's sentencing remarks at a sentence hearing can provide an evidentiary foundation for factual findings, though the weight given to such material depends on the circumstances of each case.
  • In dismissing this appeal, the Court emphasised that a ground of appeal will be characterised as unduly technical and devoid of merit where it challenges an uncontested factual finding that would inevitably have been established had it been disputed.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), s 5
- Evidence Act 1995 (NSW), ss 4, 191

Cases:
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Stone [2020] NSWSC 1485
- ASP v R [2007] NSWSC 339
- Lloyd v R [2017] NSWCCA 303
- R v Garforth (Court of Criminal Appeal (NSW), 23 May 1994, unrep)
- R v Isaacs (1997) 41 NSWLR 374