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Court of Criminal Appeal 17 October 2025

Towney v R

[2025] NSWCCA 166

Assault & violenceHomicideTheft & propertyPublic order & justice offences

Citation: Towney v R [2025] NSWCCA 166
Court: NSW Court of Criminal Appeal
Date: 17 October 2025
Judges: Mitchelmore JA, Kirk JA, Hamill J

Background

The applicant was tried jointly with a co-accused on charges arising from a violent home invasion at a farm in Condobolin on 9 October 2018. The Crown alleged that three men, including the applicant and his co-accused, broke into the home of a couple and, over the course of several hours, detained five people, wounded one victim, and ultimately set fire to the house with that victim tied up and gagged inside. The victim managed to escape, but the house was destroyed.

The applicant pleaded guilty to arson (intentionally destroying property by fire). The jury convicted him of attempted murder, recklessly wounding a victim while in company, and five counts of unlawful detention. However, the same jury acquitted the co-accused on the attempted murder count, though it convicted him on the wounding and detention counts.

The trial judge imposed an aggregate sentence of 26 years' imprisonment with a non-parole period of 17 years. The applicant sought leave to appeal against his conviction for attempted murder and against his sentence.

  • Whether the jury's acquittal of the co-accused on the attempted murder count was logically inconsistent with the applicant's conviction on that same count, in circumstances where the Crown relied on a joint criminal enterprise.
  • Whether the trial judge was required to direct the jury to return the same verdict against both accused on the attempted murder count.
  • Whether the aggregate sentence of 26 years was manifestly excessive, specifically whether the degree of notional accumulation across individual counts reflected a latent misapplication of the totality principle.

Decision

Conviction appeal: Inconsistency of verdicts

The Court granted leave to appeal on the inconsistent verdicts ground but dismissed the appeal. Mitchelmore JA, with Kirk JA and Hamill J agreeing, held that the Crown had meaningfully differentiated its case against the two accused on the attempted murder count. The co-accused was not present when the fire was set, so the Crown's case against him rested on his participation in a joint criminal enterprise with all three men. By contrast, the Crown's case against the applicant on that count relied only on a joint enterprise between the applicant and Adam McKay, because it was not known which of them actually ignited the fire.

Because the legal bases for liability differed between the two accused, an acquittal of the co-accused did not logically require acquittal of the applicant. Even if a joint criminal enterprise linking the co-accused to the applicant were necessary, the jury still needed to be independently satisfied that the co-accused had acted in furtherance of that enterprise. The jury was also entitled to accept parts of the principal witness's evidence while rejecting others, and the acquittal of the co-accused may simply have reflected the jury's stricter application of the heavy burden of proof to the acts alleged specifically against him.

Conviction appeal: Requirement to direct the jury

The trial judge was not required to direct the jury to return the same verdict for both accused. The legal and factual foundations of the Crown case differed as between them on count 1, and no such direction was warranted.

Sentence appeal: Totality

The Court granted leave to appeal against the sentence but dismissed that appeal as well. Hamill J, with Mitchelmore JA and Kirk JA agreeing, rejected the submission that the aggregate sentence revealed a latent misapplication of the totality principle. Although the arson and attempted murder charges arose from the same act of lighting the fire, the consequences of that act were legally and factually distinct: one captured the destruction of the victims' home and possessions, the other the attempt to kill a bound and gagged man. Some accumulation between those counts was therefore appropriate.

The detention of four additional people and the wounding of the victim represented entirely separate offending, justifying a further marked degree of notional accumulation. While the indicative individual sentences were in the middle to lower range for offences of that objective gravity, the aggregate sentence was described as very harsh. The Court nonetheless found no error in the sentencing judge's approach, and could not conclude the aggregate sentence was manifestly unreasonable or plainly unjust.

Orders Made

• Grant leave to appeal against the sentence
• Dismiss the appeal

Key Takeaways

  • Acquittal of a co-accused on a count does not automatically render a conviction of the other accused on the same count inconsistent, particularly where the Crown advanced different legal bases of liability against each accused.
  • Where a Crown case relies on joint criminal enterprise, a jury's verdict acquitting one accused does not necessarily require rejection of evidence that was also used against the other accused. The jury may have applied a different standard of satisfaction to the acts specifically alleged against the acquitted person.
  • No requirement arises for a trial judge to direct a jury to return identical verdicts for co-accused where the Crown meaningfully differentiates its case as between them.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that the totality principle does not prohibit a high degree of notional accumulation across an aggregate sentence where offences, although arising from connected events, involve separate victims, separate injuries, and legally distinct consequences.
  • No error was established in the sentencing approach despite the applicant's diminished moral culpability arising from his upbringing, because the objective gravity of the offending, considered in its totality, was at the extremely high end.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 30, 35(3), 86(2)(a), 86(3), 112(3), 195(1)(b), 198
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 53A(2)(b)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 10(1)(b)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021, rr 3.5(5), 4.15

Cases
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MFA v R (2002) 213 CLR 606; [2002] HCA 53
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Still v R [2010] NSWCCA 131
- ML v R [2015] NSWCCA 27
- Miller v R [2014] NSWCCA 34
- Darby v R [2016] NSWCCA 164
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Davidson v R [2022] NSWCCA 153; (2022) 100 MVR 336
- Chandler v R [2023] NSWCCA 59; (2023) 103 MVR 392
- Noonan v R [2021] NSWCCA 35
- R v White [2025] NSWCCA 111
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37