Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: McCosker v R [2022] NSWCCA 127 Hearing dates: 3 June 2022 Decision date: 17 June 2022 Before: Beech-Jones CJ at CL; Adamson J; Bellew J Decision: (1) Leave to appeal granted in respect of grounds (1), (2) and (3).
(2) Leave refused in respect of ground (4).
(3) Appeal dismissed.
Catchwords: CRIME — Appeals — Appeal against sentence — whether disparity between sentence imposed on applicant compared to co-offender — where open to sentencing judge to assess relative culpability as similar — where open to sentencing judge to impose same pre-discount sentence on both offenders — leave to appeal granted — ground not made out
CRIME — Appeals — Appeal against sentence — whether sentencing judge could make finding on time of death based on evidence — where evidence existed — where ground devoid of merit and unduly technical — leave to appeal not granted
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Criminal Appeal Act 1912 (NSW), s 5
Evidence Act 1995 (NSW), ss 4, 191
Cases Cited: R v Garforth (Court of Criminal Appeal (NSW), 23 May 1994, unrep)
R vIsaacs (1997) 41 NSWLR 374
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Category: Principal judgment Parties: Troy Lee McCosker (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
R J Wilson SC (Applicant)
M Kumar / D Beaufils (Respondent)
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2018/258473 Decision under appeal
- Court or tribunal:
- Supreme Court of NSW
- Jurisdiction:
- Criminal
- Citation:
- Date of Decision:
- 16 December 2020
- Before:
- R A Hulme J
- File Number(s):
- 2018/258473
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 23 October 2020, a jury in the Supreme Court found Mr McCosker (the applicant) guilty of the murder of Mr Still (the deceased) at Whitebridge on 20 August 2018 in a joint criminal enterprise with Mr Stone (a pseudonym), who pleaded guilty to murder in the Local Court. The applicant was later sentenced by R A Hulme J on 16 December 2020 to 36 years’ imprisonment, with a non-parole period of 27 years
On the night of the offence, Mr Stone met with the deceased to show him a trailer which he was interested in purchasing. Mr Stone had asked the deceased to bring a can of fuel for a trail bike which was to be used to ride to the location at which the trailer was located. In the course of the journey, the bike ran out of fuel and the two pushed it into a quarry to refuel it. As it was cold, the deceased gathered some grass and lit a fire. After some time, Mr Stone went to put more grass on the fire. As he did so, he sensed…
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- AGLC
- McCosker v The The Queen [2022] NSWCCA 127
- Case
- [2022] NSWCCA 127
- Decision Date
CaseChat Overview and Summary
The applicant also argued that the sentencing judge could not make a finding on the time of death based on the evidence presented. However, the court found that there was evidence available to support such a finding, and the ground of appeal was deemed to be devoid of merit and unduly technical. The court held that leave to appeal on this ground should not be granted. The court's reasoning was based on the principle that the sentencing judge had the discretion to consider all relevant evidence in determining the appropriate sentence, and that the applicant's arguments were not sufficient to warrant an appeal. As a result, the appeal against sentence was dismissed in its entirety.
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Background
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Evidence
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Decision
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