McCosker v The The Queen

[2022] NSWCCA 127

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:

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 vIsaacs (1997) 41 NSWLR 374

R v Stone [2020] NSWSC 1485

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Category:

Principal judgment

Parties:

Troy Lee McCosker (Applicant)
Regina (Respondent)

Representation:

Counsel:
R J Wilson SC (Applicant)
M Kumar / D Beaufils (Respondent)

Solicitors:
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:

[2020] NSWSC 1822

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 that the deceased was going to splash him with petrol. In response, Mr Stone kicked the bucket of fuel towards the deceased, which ignited and caused the deceased to suffer burns. Mr Stone then rode off on the trail bike to a friend’s home where he contacted various people including the applicant.

Mr Stone told the applicant that they needed to speak and the applicant agreed to give Mr Stone a lift. They drove to a cemetery where Mr Stone told the applicant what happened. Together, they drove to the quarry where the applicant spotted the deceased on the ground. Mr Stone asked the applicant, “should I ring an ambulance or should I finish him off?”. The applicant gave no verbal response. Neither called an ambulance. Mr Stone phoned a friend and asked for a can of petrol, which she agreed to provide. The applicant drove Mr Stone to collect the petrol and returned with him to the quarry. Mr Stone left the vehicle, poured petrol on the deceased and set the petrol alight. On his return to the car, the applicant drove him away from the quarry.

A short time later, a taxi driver saw the fire and called the fire brigade. When he appreciated that a person had been burned, he called an ambulance. The deceased, who had suffered extensive burns to 90% of his body, was air-lifted to hospital. He suffered agonising and excruciating pain and died before reaching the hospital.

The applicant sought leave to appeal from his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The principal issues on appeal were:

1. Whether the sentence imposed on the applicant was disparate with the sentence imposed on his co-offender, Mr Stone (the first issue); and

2. Whether there was evidence to support the finding that the deceased survived for two hours after being burned on the second occasion (the second issue).

The Court held (Beech-Jones CJ at CL, Adamson and Bellew JJ), granting leave to appeal on the first issue, refusing leave to appeal on the second issue, and dismissing the appeal:

As to the first issue

1. It was open to the sentencing judge to find that the relative culpability of the applicant and Mr Stone was similar based on the fact that the applicant had a motive to kill the deceased as the applicant played a key role in the commission of the offence. As such, it was open to the sentencing judge to impose the same sentence on the applicant as would have been imposed on Mr Stone, but for the 25% discount for his plea of guilty and 10% for assistance to authorities which reduced the aggregate sentence imposed on him: [36]-[41] (the Court).

As to the second issue

1. Based on a review of the evidence and sentencing judgment of Mr Stone, it was open to the sentencing judge to sentence the applicant on the basis that the deceased had survived for two hours after he had been burned a second time. This had not been disputed by the applicant’s trial counsel at the sentence hearing and was a matter of fact and not opinion, given medical staff were in a position to observe the time of death of the deceased: [53] (the Court).

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54, considered.

1. The ground was unduly technical and devoid of merit, and as such, leave to appeal in respect of the ground should be refused: [55] (the Court).

Judgment

1. THE COURT: Troy McCosker (the applicant) seeks leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed upon him by R A Hulme J on 16 December 2020 for the murder of Wade Still (the deceased) following a trial by jury. The maximum penalty for murder is life imprisonment. A 20-year standard non-parole period applies. His Honour imposed a sentence of 36 years’ imprisonment, commencing on 22 August 2018, with a non-parole period of 27 years. The applicant will be eligible for release on 21 August 2045.

2. The applicant and Mr Stone (a pseudonym) were both charged with murdering the deceased in a joint criminal enterprise.

3. Mr Stone pleaded guilty to murder when the matter was in the Local Court. On 6 October 2020, prior to his giving evidence, R A Hulme J sentenced Mr Stone to a total term of imprisonment of 23 years and 4 months, which represented a pre-discount sentence of 36 years’ imprisonment, with a combined reduction of 35%, being 25% for the plea of guilty and 10% for the assistance he had provided and the assistance he was to provide by giving evidence against the applicant. Mr Stone’s non-parole period was 17 years and 6 months’ imprisonment, which conformed to the statutory ratio of 75% between the non-parole period and the total term, as was the case for the sentence imposed on the applicant: s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

4. The trial of the accused commenced on 7 October 2020. On 23 October 2020, the jury returned a verdict of guilty. The sentence hearing took place on 15 December 2020. His Honour imposed the sentence (set out above) on the following day.

The grounds of appeal

5. The applicant seeks leave to appeal on the following grounds:

“1.    The judge erred by finding that there was no basis to distinguish between the applicant’s culpability and that of the co-offender Mr Stone.

2.    The judge erred in failing to take into account the applicant’s lesser culpability when applying the principles of parity.

3.    The judge erred in his findings about the respective roles of the applicant and the co-offender, specifically by finding that the applicant used the co-offender and that, without the applicant, the murder would not have happened.

4.    The judge erred by finding, in the absence of evidence, that the deceased remained alive for a further two hours after the second time he was set alight with petrol by the co-offender.”

6. The first three grounds allege disparity between the sentence imposed on the applicant and the sentence imposed on Mr Stone. The fourth ground is a discrete ground based on a single factual finding in the remarks on sentence.

7. In order to address these grounds, it is convenient to summarise the proceedings on sentence and the remarks on sentence, in so far as they are relevant.

The proceedings on sentence

8. At the sentence hearing, the Crown tendered a bundle which included the applicant’s criminal history; a s 9 bond entered by him in the Local Court at Newcastle; victim impact statements of Sharon Lowe and Rodney Still, the deceased’s mother and father; and a copy of the remarks on sentence in respect of Mr Stone: R v Stone [2020] NSWSC 1485 (the Stone sentence). The bundle was marked as an exhibit, there being no objection to the tender.

9. A report of Dr Christopher Bench, forensic psychiatrist dated 11 December 2020 was tendered on behalf of the applicant. Dr Bench opined that the applicant met the diagnostic criteria for Post-traumatic Stress Disorder, Stimulant Use Disorder in enforced remission (as he had been in custody since 22 August 2018), Opioid Use Disorder in maintenance therapy and Cannabis Use Disorder in enforced remission. Dr Bench noted that the applicant denied having any involvement in the murder and contended that he had merely provided petrol to Mr Stone at his request. The applicant gave evidence at the trial but not at the sentence hearing.

10. The Crown at the sentence hearing submitted, on the question of parity, as follows in its written submissions:

“12.   It is quite clear however that the offence could not have been committed but for the contribution of the [applicant]. It appears to be the case that he sat in the car waiting for [Mr Stone] to do the burning. It is submitted that even though his contribution was different is it is no less culpable. Indeed it could be seen as an attempt by him to distance himself from direct involvement in a crime that he was very much a part of.

13.    … the Crown cannot point to any matters which would make the [applicant’s] contribution more culpable than [Mr Stone’s].

…

15.   … the Crown does submit that the level of sentence indicated by this Court in [Mr Stone’s] sentence before the discounts were given, should apply to the [applicant].”

11. At the sentence hearing, the applicant accepted that the jury, by its verdict, indicated that it must have concluded that the applicant and Mr Stone had agreed to kill the deceased by burning him. However, the applicant submitted that his involvement in the killing was less than that of Mr Stone and, accordingly, the sentence imposed on the applicant ought be less than the undiscounted head sentence imposed on Mr Stone. The applicant further submitted that there ought be a finding of special circumstances, based on the report of Dr Bench.

The sentence judgment

The facts

12. His Honour’s findings of fact were as follows.

The background to the animosity between the applicant and the deceased

13. In August 2018, the applicant was 49 years old and the deceased was 23. They both used drugs. The applicant was a low-level drug supplier. There had been ill-feeling between the applicant and the deceased over an extended period.

14. In February 2018, the deceased had broken into the applicant’s home, stolen his property and struck him on the head. Afterwards, the deceased announced, “I’m Wade Still. I can do whatever I want. I will kill their life.” In response, the applicant broke into the deceased’s house and gave him “a flogging”. The animosity became worse as a result of the deceased’s suspicion that the applicant had had an affair with the deceased’s partner while he was in custody (from 26 March 2018 until 5 July 2018). On 17 August 2018, the deceased stole a bag from the applicant.

The night of 19-20 August 2018

15. At around that time, the deceased was looking for a car trailer / “float” and made some enquiries with Mr Stone, who agreed to show him the trailer owned by Mr Stone’s father-in-law. They arranged to meet at a location from where Mr Stone would take the deceased to the trailer on a trail bike. Mr Stone instructed the deceased to bring a can of fuel for the trail bike.

16. On the evening of 19 August 2018, the two set out on Mr Stone’s trail bike. The deceased was a pillion passenger and carried a container of fuel. The bike ran out of fuel near a disused quarry and the two alighted from the bike and pushed it 250m into the quarry to refuel it. It was between 11.30pm and midnight. Because of the cold, the deceased gathered some grass and lit a fire. He poured fuel into a bucket to use on the fire. The deceased and Mr Stone each smoked a cigarette and took some Xanax tablets. After about 10 to 15 minutes, Mr Stone went to put some more grass on the fire. As he did so, he sensed that the deceased was going to splash him with petrol. In response, he kicked the bucket of fuel “towards” the deceased who was standing beside the fire. Mr Stone then saw a big flame.

17. Mr Stone rode off on the trail bike to a friend’s home in Dudley where he attempted to contact various people, including the applicant.

18. Shortly after midnight, two witnesses drove near to the quarry and saw a young man (the deceased) dishevelled, apparently covered in mud, screaming, yelling and waving his arms.

19. At 12:31am, Mr Stone made contact with the applicant who agreed to give Mr Stone a lift from Dudley. Mr Stone told the applicant they needed to speak because “something had just happened”. The applicant collected Mr Stone and drove to a cemetery where they spoke for 10 minutes. Mr Stone told the applicant what happened at the quarry and that the deceased “could be in a bad way”. The applicant then drove Mr Stone to the quarry. As he went to turn into the entrance, he pulled away back to the roadway. Mr Stone asked him what he was doing and the applicant, who had seen the deceased, replied, “didn’t you see him on the ground?”

20. Mr Stone asked the applicant, “Should I ring an ambulance or should I finish him off?”. Neither the applicant nor Mr Stone articulated what they should do. Neither called an ambulance. Mr Stone used the applicant’s phone to call a friend and ask her for a can of fuel. She agreed. The applicant drove Mr Stone to the friend’s place where Mr Stone collected the fuel.

21. Between 12.50am and 12.55am, the deceased was seen hobbling and staggering near the quarry and was heard calling for help. When Mr Stone and the applicant arrived back at the quarry, Mr Stone got out of the vehicle carrying the fuel container. He went 5 or 10 metres behind the vehicle, poured petrol on the deceased and lit it. Mr Stone saw a big flame. He got back into the car and the applicant drove off with Mr Stone in the car.

22. About two minutes later, a taxi driver saw the fire and called the fire brigade. When he realised a person was involved he called Triple-0 for an ambulance. The deceased’s cries of pain could be heard on the recording of the Triple-0 call, which his Honour described as “very chilling”.

23. The deceased died while he was being air-lifted to the Royal North Shore Hospital. A forensic pathologist who conducted the autopsy found that there was a mixture of partial thickness and deep burns to 90% of the deceased’s body and concluded that the cause of death were the “effects of fire”. His Honour found that the deceased survived two hours from being incinerated by Mr Stone on the second occasion (this finding is the subject of ground 4).

The applicant’s role in the offending

24. His Honour found that the applicant “willingly accepted the second part of Mr Stone’s suggested course of action, namely to ‘finish him off’. [The applicant] needed no convincing”. The applicant was “instrumental” in obtaining the petrol and “returning him to the quarry where … Mr Stone did what he did.”

25. His Honour then said:

“34   Counsel for the offender sought to make much of the fact that the offender was not the one who poured the petrol and ignited it. The answer, of course, is that he did not need to. The Crown Prosecutor pointed out in submissions on sentence that it was the offender who had the motive to cause harm to [the deceased], not Mr Stone. Mr Stone presented the offender with a way to vent his animosity towards [the deceased]. The offender seized the opportunity and used Mr Stone as the means of achieving a result that met his satisfaction. All the offender had to do was take Mr Stone where he could obtain some petrol, return him to scene and there let him carry out what he had proposed. I am satisfied that is what occurred.

35   The Crown case at trial was summarised by the Crown Prosecutor in his closing address:

‘The Crown case is not that he [the applicant] suggested it, it is that he became a part of it. once the suggestion had been made. Not only did he go along with it, but he facilitated it in the sense that, without his participation, it would not have happened. It is on this basis the Crown puts its case and in law, the law provides this as an appropriate and proper basis for you to convict [the applicant] of the murder of [the deceased].’”

Assessment of objective seriousness

26. His Honour’s finding that the applicant and Mr Stone were equally culpable is the subject of challenge in grounds 1-3. Accordingly, his Honour’s reasons for these findings are reproduced below:

“36   The starting point for an assessment of the objective gravity of the offence is to acknowledge the manner in which the death was caused. I described it in the following way when sentencing Mr Stone:

‘Death in the way it came to [the deceased] must have involved an extreme level of terror and excruciating pain. He was first engulfed in flames at about midnight. The offender returned to ‘finish him’ about an hour later. [The deceased] remained alive for a further two hours before succumbing to his terrible injuries. He died because of an objectively sadistic and callous act in one of the worst ways imaginable.’

37    There is no room to doubt that both offenders had an intention to kill.

38    I am satisfied beyond reasonable doubt that the offender became aware that [the deceased] had been burnt earlier by Mr Stone in the quarry and he drove Mr Stone from the cemetery back to the quarry to look for [the deceased]. There was no innocent reason for him to do that unless he was minded to help [the deceased] in some way. It is clear that he was not so minded.

39    The fact that the offender was not involved in the earlier burning of [the deceased] in the quarry is immaterial to his culpability in much the same way as I considered that was the case in sentencing Mr Stone. I said:

‘The Crown tied a finding as to the relative level of objective seriousness of the offence to whether a finding was made that the first incident in the quarry involved a deliberate act done with an intention of causing death. I do not see it in the same way. The fact that the offender returned and sought to "finish him off'' is such a brazen act of extreme, cruel and sadistic violence that it does not matter whether the first act was intentional or accidental.’

40    The offender was aware that [the deceased] had been previously burned to a degree of some seriousness. He was prepared nonetheless to have more of the same inflicted in order to ‘finish him off'’. [The deceased] survived a further two hours before succumbing to his terrible injuries. By joining with Mr Stone in carrying out such a sadistic and callous act, the offender made himself a party to killing a human being in one of the worst ways imaginable.

41    There is no basis to distinguish between the culpability of each offender. Just as I found Mr Stone's offence was ‘a most heinous example of its type and is easily in the upper range of objective seriousness’, so too is the offence of [the applicant].”

[footnotes omitted.]

27. His Honour found at [46]:

“[T]his case is a most heinous example of its type and is easily in the upper range of objective seriousness for the crime of murder. I am not of the view that a life sentence is appropriate [it having been sought by the Crown], but there should be a determinative sentence of significant magnitude, subject to the other matters required to be considered.”

Other matters

28. His Honour referred to the victim impact statements given by the deceased’s parents. He summarised the applicant’s life history, considerable drug use and the diagnoses made by Dr Bench.

29. His Honour noted, at [51]:

“No causal connection between any mental health condition and the offending behaviour could be established by Dr Bench, given the offender's denial of responsibility for it.”

30. His Honour found that the applicant’s criminal history which dated from 1990 disentitled him to leniency. His Honour noted that he was subject to a bond at the time of the murder and that his being on conditional liberty aggravated the offending. His Honour was not persuaded that there were special circumstances and, accordingly, did not alter the statutory ratio of 75% between the non-parole period and the total term of imprisonment.

Parity

31. His Honour said of parity between the applicant and Mr Stone:

“60   Careful consideration has been given to the submissions made on behalf of the offender that were to the effect that he should be found to have a lower level of culpability for the offence and that he should receive a sentence approaching, or at the level of, that which was imposed upon Mr Stone.

61    I have earlier indicated that the level of culpability of the offender is at the same level as that of Mr Stone. It may arguably be greater but I have proceeded upon the basis of parity of objective seriousness of the offences.

62    Mr Stone's criminal history is a bit more serious than the offender's is. It included prior acts of violence, albeit comparatively minor. Like the offender, he was on a good behaviour bond at the relevant time.

63    Mr Stone had a significant history of substance abuse but there was evidence that drug addiction was not really a matter of choice for him because of his exposure at an early age to the substance abuse of family members. He was found to be suffering from Major Depressive Disorder, Stimulant Use Disorder and Substance Use Disorder. He had the support of family members. I found that Mr Stone's prospects of rehabilitation could not be described as ‘good’ but there were some positive signs.

64    A significant distinction with the present offender was that Mr Stone was genuinely remorseful. Further, he pleaded guilty and provided assistance to authorities by way of giving evidence for the prosecution at the offender's trial. He received a combined discount of 35% for his plea and assistance.

65    The offender, in contrast, appears to be resolutely unremorseful and there is very little that could support a favourable finding in relation to rehabilitation prospects or unlikelihood of reoffending. His punishment is not increased because of these matters; the point is that he is not entitled to the mitigation that favourable findings would attract.

66    The starting point for Mr Stone's sentence was one of 36 years. With the reduction of 35%, it became a sentence of 23 years and 4 months.”

Consideration

Grounds 1-3: alleged disparity with sentence imposed on Mr Stone

32. Mr Wilson SC, who appeared for the applicant, did not challenge his Honour’s assessment of the objective seriousness of the applicant’s offending conduct and accepted that it was in the high range. However, he contended that the first incident, where Mr Stone caused the deceased to be burned with ignited fuel, was irrelevant to the applicant’s culpability, but relevant to Mr Stone’s. He relied on the principle that prior and post-offence criminal conduct with respect to the victim can be taken into account when sentencing for the offence: R v Garforth (Court of Criminal Appeal (NSW), 23 May 1994, unrep) (where this Court held that, when sentencing the offender for murder, the sentencing judge was entitled to take into account that the victim was abducted and sexually assaulted before she was murdered); see also ASP v R [2007] NSWSC 339 at [233]-[234] (Johnson J). Mr Wilson submitted that this was one of the factors which ought lead this Court to consider that the applicant has a justified sense of grievance by having his moral culpability assessed as being equivalent to that of Mr Stone.

33. Further, Mr Wilson submitted that Mr Stone, who had been involved in the initial burning of the deceased, had about an hour to contemplate what to do. He contended, by contrast, that the applicant had only about ten minutes to consider the matter, since he only learned of the situation when Mr Stone told him at the cemetery what had happened, following which they drove to the quarry, where Mr Stone incinerated the deceased. He contended that motive was a neutral factor in all the circumstances.

34. Further, Mr Wilson submitted that his Honour ought, by reciting the Crown case at trial, to be taken to have found that the murder would not have been committed without the applicant’s participation and that there was insufficient basis for that finding. He also submitted that it was not open to his Honour to find that the applicant had “used” Mr Stone to kill the deceased.

35. It is significant that the same judge sentenced Mr Stone, and tried (with a jury) and sentenced the applicant. This Court has held that appellate intervention on the ground of alleged disparity will only be warranted in circumstances where it is persuaded that the relative differentiation between co-offenders was not open to the sentencing judge: see, for example, Lloyd v R [2017] NSWCCA 303 at [96]-[97] (R A Hulme J, Payne JA and Garling J agreeing).

36. His Honour’s reasons make it clear that the circumstances of the first burning paled into insignificance when compared with the second burning, which was done for the purpose of killing the deceased, a purpose which the applicant and Mr Stone shared. Further, his Honour considered the applicant’s motive (to get rid of the deceased) to be a significant impetus: first, because Mr Stone was aware of it, and, second, because it resulted in the applicant assisting Mr Stone to kill the deceased. The applicant allowed Mr Stone to use his phone to call a friend to get petrol, drove him to collect the petrol, drove him back to the quarry and waited, while Mr Stone, to the applicant’s knowledge, incinerated the deceased. Afterwards, the applicant drove Mr Stone away from the scene. It was open to his Honour to infer that, had the applicant responded to Mr Stone’s question as to whether they should call an ambulance or “finish [the deceased] off” that he should call the ambulance, Mr Stone would not have killed the deceased. This was part of the basis for [34] of the sentencing judgment.

37. When assessing the relative culpability, it appears that the sentencing judge, at [61], contemplated assessing the applicant’s relative culpability as being greater than that of Mr Stone (because of motive and assistance), but rejected this in favour of equal culpability, a finding which, given the starting point, was in the applicant’s favour.

38. Although his Honour did not expressly adopt the Crown case at trial (set out in the extract at [35] of the sentence judgment), his Honour’s findings in [34] are sufficient to show how integral the applicant was to the murder and how little it mattered to an assessment of culpability that it was Mr Stone rather than the applicant who actually poured the second lot of petrol on the deceased and ignited it. Indeed, it was consistent with the applicant being the driving force and Mr Stone being the person who carried out the necessary acts to bring about the death of the deceased.

39. His Honour, as the trial judge in the trial of the applicant, had the advantage of seeing both Mr Stone (who gave evidence in the prosecution case against the applicant) and the applicant (who gave evidence in his own case) give evidence. This gave his Honour a unique advantage in assessing the dynamics of the relationship between the applicant and Mr Stone as it manifested itself on the night of 19-20 August 2018. It was open to his Honour to find that the applicant had “used” Mr Stone (as in [34]).

40. If, indeed, his Honour ought to be understood as having found that the murder would not have occurred but for the applicant, this finding was open to his Honour. The evidence established that the applicant was necessary in several respects: agreeing with Mr Stone (as far as the evidence revealed, tacitly) as to what they would do, providing his phone, driving Mr Stone to collect the petrol, taking him to the quarry, waiting while he burned the applicant and driving him away. Without the assistance of the applicant driving him to obtain petrol, Mr Stone would not have been able to obtain the petrol which was used to fatally burn the deceased.

41. For these reasons, we are not persuaded that any of grounds 1, 2 or 3 has been made out, although we are persuaded that leave to appeal ought be granted in respect of each of those grounds.

Ground 4: lack of evidentiary foundation for the finding that the deceased survived for two hours

42. Mr Wilson argued that the “fact” that the deceased had survived for two hours after having been burned a second time was not supported by the evidence.

43. This Court has not been provided with all of the evidence from the applicant’s trial. However, the Crown accepted that the evidence at trial did not establish, in terms, that the deceased had survived for a further two hours from the second burning. Nonetheless, the Crown pointed to the following evidence and submitted that it was sufficient to support the finding.

1. the victim impact statement of Ms Lowe, the deceased’s mother, which included the following: “Why did they think that pouring petrol over my son and setting him alight and suffering for 5 hours think [sic] that was a good way of life.”;

2. the chronology of events which established that the first burning occurred prior to 12.10am, when the deceased was seen running from the bushes, waving and yelling and, apparently covered in mud; the second burning occurred at about 1am and was reported a couple of minutes later when the fire was observed by a witness driving past; the ambulance arrived at 1.19am and drove away with the deceased (who was still alive) at 1.25am and that, according to the forensic pathologist who performed the autopsy the deceased died on the way to hospital; and

3. the sentence judgment for Mr Stone, which included the finding that the deceased survived for two hours, a finding which was based on the following fact in paragraph 69 of the statement of agreed facts tendered pursuant to s 191 of the Evidence Act 1995 (NSW): “The deceased was pronounced deceased at 3.15am during transit and was returned to the John Hunter Hospital.”

44. The victim impact statement is insufficient to prove that the deceased survived for five hours since, on the Crown case, the first burning occurred at about 12.10am and the deceased died about three hours later. There is, thus, an inconsistency between the statement and the finding sought to be impugned. In these circumstances, the wider question of what use can be made of the contents of a victim impact statement does not arise and need not be addressed.

45. We accept Mr Wilson’s submission that the chronology set out in (2) above is insufficient to prove that the deceased survived for two hours after the second burning.

46. As to (3), the starting point is that a statement of agreed facts applies only between the parties to it. Thus, while Mr Stone was bound by the agreed fact in paragraph 69 that the deceased was pronounced dead at 3.15am, the applicant was not so bound.

47. However, it is important, when assessing the status of the statement of agreed facts in Mr Stone’s sentence, to recall that the Evidence Act does not apply in sentencing, unless an order is made to apply it. Section 4 of the Evidence Act relevantly provides:

“…

(2)     If such a proceeding [a proceeding in a NSW court] relates to sentencing—

(a)     this Act applies only if the court directs that the law of evidence applies in the proceeding, and

(b)     if the court specifies in the direction that the law of evidence applies only in relation to specified matters—the direction has effect accordingly.

(3)     The court must make a direction if—

(a)     a party to the proceeding applies for such a direction in relation to the proof of a fact, and

(b)     in the court’s opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding.

(4)     The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice.”

48. In the present case, the sentence judgment for Mr Stone was tendered, admitted and no direction under s 4 was either applied for or made.

49. In R vIsaacs (1997) 41 NSWLR 374 (Isaacs) at 377–378, this Court (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ) summarised the principles relating to fact-finding in sentencing as follows:

“1.   Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury …

2.   Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings …

3.   The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury …

4.   A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt …”

[References to authorities omitted.]

50. The fourth proposition in Isaacs was addressed by the High Court in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Olbrich). Their Honours held that matters in aggravation needed to be proved beyond reasonable doubt but that matters in mitigation needed only to be proved on the balance of probabilities. The majority (Gleeson CJ, Gaudron, Hayne and Callinan JJ) said further at [25]:

“References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say ‘if necessary’ because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.).”

51. The practical effect of this passage from Olbrich shows that fact-finding on sentence depends on the context and, in particular, whether a fact is, or is likely to be in dispute. While it may be accepted that the admission of the sentence judgment for Mr Stone into evidence does not have the effect that every factual finding in that judgment can be used against the applicant, there may be facts in that judgment which are relevant to the sentence to be imposed against the applicant, including those relating to parity, which can be taken into account against him. The present issue concerns the time at which the deceased died. It was a quintessential example of a fact that could not be seriously disputed. The admission into evidence in the applicant’s case of the sentencing judgment in Mr Stone’s case provided a sufficient evidentiary foundation for a finding on such a fact  in the applicant’s case. Different considerations might arise if the sentencing judgment was said to constitute evidence that contradicted evidence called at the trial or was used to supplement evidence on a serious factual issue that arose at the trial. The applicant’s argument on this ground in relation to this fact is best described as “technical”. He cannot complain if a technical argument receives a technical response namely that the “tender” of the sentencing judgement from Mr Stone’s case meant that there was some evidence to support the disputed fact.

52. The applicant’s substantial focus in the sentence hearing was to distinguish his moral culpability from that of Mr Stone. The actual time of death was not only neutral as between the two of them but it was also not particularly significant. What mattered was that the deceased was, for an appreciable period after the second burning, in unmitigated agony before death ended his suffering. So much was established by the evidence of the chronology summarised above.

53. It can be inferred from the wording of the agreed fact in paragraph 69 as to time of death that the fact that the deceased died at about 3.15am was not a matter of opinion, but rather a matter of record. At the time the deceased died, he was with medical staff who were in a position to observe whether he was alive or dead. In these circumstances, his Honour was entitled to assume that the time of death was not only not in issue, but was also incontrovertible. Indeed, had the Crown informed his Honour at the applicant’s sentence hearing that it relied on the circumstance that the deceased had survived for two hours after the second burning, it is difficult to conceive that the applicant would have disputed that fact, or had any basis for so doing. Had the applicant done so, it is reasonable to infer that the Crown would have tendered the medical record (which presumably formed part of the brief of evidence) to establish it.

54. In the particular circumstances of the present case, it was open to his Honour, having regard to the matters set out above, to find that the deceased survived for another two hours and to take that fact into account in assessing the objective seriousness of the applicant’s offending (the level of which was not disputed by the applicant). It is not necessary to address the wider issue of the effect on the sentencing of an offender of the tender of a sentence judgment of a co-offender since that matter depends on the particular circumstances of each case.

55. As ground (4) is both unduly technical and devoid of merit, leave is refused in respect of that ground.

Orders

56. For the reasons given above, the Court orders as follows:

1. Leave to appeal granted in respect of grounds (1), (2) and (3).

2. Leave refused in respect of ground (4).

3. Appeal dismissed.

**********

Decision last updated: 17 June 2022