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Supreme Court 14 June 2024

R v Cage; R v Lowcock; R v Stamp (No 3)

[2024] NSWSC 718

HomicideTheft & propertyFirearms & weapons
CRIME SENTENCE EXTENDED JOINT CRIMINAL ENTERPRISE PROFOUND DEPRIVED BACKGROUNDS REDUCTION IN MORAL CULPABILITY

Citation: R v Cage; R v Lowcock; R v Stamp (No 3) [2024] NSWSC 718
Court: Supreme Court of New South Wales
Date: 14 June 2024
Judge: Yehia J

Background

In the early hours of 29 August 2021, three offenders drove together to a meeting arranged under the pretence of a drug purchase. The deceased had been lured to a car park at Salt Ash through an intermediary who believed she was facilitating a legitimate drug transaction. In fact, the arrangement was a setup: one of the offenders had identified the deceased as the target of a robbery and had no funds to purchase drugs.

During the robbery, the deceased was shot once to the rear left side of his head and neck and died shortly after. A loaded firearm had been brought to the scene and discharged. The identity of the shooter could not be established on the evidence. A hired vehicle used by the offenders was later set alight and destroyed.

Two of the three offenders were convicted of murder by a jury after a six-week trial. A directed verdict of not guilty was entered for the third offender on the murder count mid-trial. All three faced sentencing on various counts, including intentionally or recklessly destroying property by fire.

  • Whether each offender's liability for murder was established under extended joint criminal enterprise, given that the identity of the shooter could not be proven
  • What constituted the objective seriousness of the murder offence in circumstances involving a planned armed robbery gone fatally wrong
  • Whether each offender's profoundly deprived childhood and background reduced their moral culpability, and if so, by how much
  • Whether the standard non-parole period of 20 years for murder should be imposed, or whether the circumstances warranted a departure
  • The appropriate sentencing outcome for the property destruction offence, including the application of plea discounts

Decision

The jury convicted two offenders of murder on the basis of extended joint criminal enterprise. The court was satisfied that each had foreseen the possibility that a loaded firearm would be used with an intention to kill or cause grievous bodily harm in the course of the robbery. Because the identity of the actual shooter could not be established on the evidence, the Crown proceeded on the theory that each was equally responsible as a participant in the joint enterprise.

Yehia J assessed the objective seriousness of the murder as above mid-range. The killing occurred in the course of a premeditated robbery, a firearm was deliberately brought to the scene, and the victim was targeted in a planned and calculated manner. These features significantly aggravated the offending.

Turning to subjective matters, the court gave significant weight to the profoundly deprived backgrounds of both convicted offenders. Both had suffered abject neglect and abuse during childhood. Consistent with Bugmy v The Queen (2013) 249 CLR 571, the court accepted that such backgrounds do not diminish over time and can reduce moral culpability even for serious offences. This reduction in culpability was a primary reason the court declined to impose the standard non-parole period of 20 years.

For the property destruction offence, the third offender received a conviction under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) with no further penalty. One co-offender received a 25% sentencing discount for an early plea; the other received only a 5% discount because his plea was not entered at the first opportunity. The court noted that the Crimes (High Risk Offenders) Act 2006 (NSW) had potential application to all three offenders and directed their legal representatives to advise them accordingly.

Orders Made

Mr Stamp (Count 3 only):
- Convicted under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), with no further penalty

Mr Cage:
- Count 1 (murder): indicative sentence of 21 years imprisonment with a non-parole period of 14 years
- Count 3 (property destruction): fixed term of 2 years and 3 months (reflecting a 5% plea discount)
- Aggregate sentence under s 53A: 21 years and 6 months imprisonment, commencing 28 February 2023 and expiring 27 August 2044
- Non-parole period: 14 years and 6 months, expiring 27 August 2037; first eligible for parole 27 August 2037

Mr Lowcock:
- Count 1 (murder): non-parole period of 13 years and 3 months, commencing 24 March 2023 and expiring 23 June 2036; additional term of 6 years and 9 months expiring 23 March 2043
- Total imprisonment: 20 years; first eligible for parole 23 June 2036

All offenders:
- Legal representatives directed to advise each offender of the potential application of the Crimes (High Risk Offenders) Act 2006 (NSW)

Key Takeaways

  • Where the identity of the shooter cannot be established, a murder conviction remains available through extended joint criminal enterprise, provided the jury is satisfied that each participant foresaw the use of a loaded firearm with intent to kill or cause grievous bodily harm.
  • A sentencing court may decline to impose the standard non-parole period for murder where an offender's profoundly deprived childhood and history of abuse substantially reduce their moral culpability, consistent with the principles confirmed in Bugmy v The Queen.
  • The premeditated targeting of a victim for robbery, combined with the deliberate arming of participants with a loaded firearm, placed this offending above the mid-range of objective seriousness despite uncertainty about individual roles.
  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may record a conviction with no further penalty: this outcome applied to the third offender on the property destruction count, reflecting his overall circumstances.
  • The Crimes (High Risk Offenders) Act 2006 (NSW) has potential application to offenders sentenced for murder, and the Supreme Court in this case directed that all three offenders be formally advised of the Act's existence and its reach.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a) (murder), 195(1)(b) (destroying property by fire)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 21A(2), 53A
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Charbaji v R [2019] NSWCCA 28
- DH v R [2022] NSWCCA 200
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Elmir v R [2023] NSWCCA 260
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Kochai v R [2023] NSWCCA 116
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Martinez v R [2022] NSWCCA 12
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Nadarasa v R; Satkunarasa v R; Sivapathasunram v R [2018] NSWCCA 29
- Porter v R [2008] NSWCCA 145
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Baker [2000] NSWCCA 85
- R v Cage; R v Lowcock; R v Stamp (No 2) [2024] NSWSC 221
- R v Chant [2009] NSWSC 290
- R v Dinos [1999] NSWCCA 208
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