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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McCosker v The The Queen

Details

AGLC: McCosker v The The Queen [2022] NSWCCA 127
Case: [2022] NSWCCA 127
Decision Date: 17 June 2022

CaseChat Overview and Summary

In the case of McCosker v The Queen, the applicant appealed against the sentence imposed upon him by the sentencing judge. The applicant and his co-offender were found guilty of a serious crime, and the applicant challenged the disparity between the sentence imposed on him compared to that of his co-offender. The legal issue before the court was whether the sentencing judge could lawfully assess the relative culpability of the offenders as similar, and thus impose the same pre-discount sentence on both. The court held that it was open to the sentencing judge to make such an assessment and impose a similar sentence, and therefore the appeal against sentence was dismissed.

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.

Orders