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

[2024] NSWSC 718

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Cage; R v Lowcock; R v Stamp (No 3) [2024] NSWSC 718

Hearing dates:

17 May 2024

Date of orders:

14 June 2024

Decision date:

14 June 2024

Jurisdiction:

Common Law

Before:

Yehia J

Decision:

Offenders sentenced see [192]-[198].

Catchwords:

CRIME – sentence – extended joint criminal enterprise – use of a loaded firearm to rob the deceased – foresight as to the use of the firearm with an intention to kill or cause grievous bodily harm – where evidence cannot establish identity of shooter – profound deprived backgrounds – abject neglect and abuse suffered by the offenders during childhood – reduction in moral culpability

Legislation Cited:

Crimes Act 1900 (NSW), ss 18(1)(a), 195(1)(b)

Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 21A(2), 53A

Cases Cited:

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

R v Eaton [2023] NSWCCA 125

R v Elzakhem [2008] NSWCCA 31

R v Isaacs (1997) 41 NSWLR 374

R v Karibian [2007] NSWCCA 334

R v King; R v York [2024] NSWSC 620

R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159

R v Millwood [2012] NSWCCA 2

R v MJ [2023] NSWCCA 306

R v Priest [2000] NSWCCA 27

R v Thomas [2017] NSWSC 1542

R v VAA [2006] NSWCCA 44

R v Walker [2023] NSWCCA 219

R v Wilhelm [2010] NSWSC 378

R v Williams [2005] NSWCCA 99

Versluys v R [2008] NSWCCA 76

Category:

Sentence

Parties:

Rex (Crown)
Elijah Cage (Offender)
Max Vincent Lowcock (Offender)
Tyson George Stamp (Offender)

Representation:

Counsel:
L Shaw (Crown)
A Webb (E Cage)
L Rowan (M Lowcock)
P Krisenthal (T Stamp)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Adrian Kiely Legal (E Cage)
George Sten Lawyers (M Lowcock)
Virginia Taylor Partners (T Stamp)

File Number(s):

2021/00321898 (E Cage); 2021/00333188 (M Lowcock); 2021/00314974 (T Stamp)

Publication restriction:

Pursuant to s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) there is to be no publication of any matter which is likely to lead to the identification of AB

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987(NSW) there is to be no publication of any matter which is likely to lead to the identification of KV

JUDGMENT

Introduction

1. On 29 August 2021 David King (“the deceased”) was shot once to the rear left side of his head and neck. He died shortly after.

2. On 7 February 2024 the offenders, Elijah Cage, Max Vincent Lowcock and Tyson George Stamp, were arraigned on three counts on an indictment as follows:

1. Count 1: On 29 August 2021, at Salt Ash in the State of New South Wales, Elijah Cage, Max Vincent Lowcock and Tyson George Stamp did murder David King.

2. Count 2: On 29 August 2021, at Salt Ash and other places in the state of New South Wales, while in the company of other persons, Elijah Cage, Max Vincent Lowcock and Tyson George Stamp took AB without her consent and with intent to obtain an advantage, namely, to avoid detection by police.

3. Count 3: On 29 August 2021, at Heatherbrae in the State of New South Wales, Elijah Cage and Tyson George Stamp did intentionally or recklessly destroy by means of fire certain property, namely a Hyundai Santa Fe (NSW Reg: CZ15CJ), the property of Avis Budget Group.

3. Each offender entered a plea of not guilty to count 1 and 2. Mr Cage and Mr Stamp entered a plea of guilty to count 3. A jury was empanelled, and the trial commenced. The trial proceeded over a period of about 6 weeks.

4. On 6 March 2024 the Crown case closed and Mr Krisenthal on behalf of Mr Stamp, made an application for a directed verdict on count 1. That application was granted, and the jury were directed that a verdict of not guilty should be returned with respect to count 1 on the indictment, in the case of Mr Stamp: R v Cage; R v Lowcock; R v Stamp (No 2) [2024] NSWSC 221.

5. Although the indictment contained a single count of murder, an alternative charge of manslaughter was left for the jury’s consideration in the case of Mr Cage and Mr Lowcock.

6. The jury retired to consider its verdict on 18 March 2024. The jury returned on 26 March 2024 with a verdict of guilty to murder in the case of Mr Cage and Mr Lowcock. In relation to count 2 on the indictment the jury returned a verdict of not guilty in each case. Mr Krisenthal on behalf of Mr Stamp, made an application for bail and Mr Stamp was granted conditional bail with respect to count 3. The sentence proceedings were conducted before me on 17 May 2024.

7. The offenders, Mr Cage and Mr Lowcock, must now be sentenced for murder, an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW), carrying a maximum penalty of life imprisonment and a standard non-parole period of 20 years. In relation to count 3 on the indictment, I must also sentence Mr Cage and Mr Stamp for intentionally or recklessly damage property by fire, an offence contrary to s 195(1)(b) of the Crimes Act. This offence carries a maximum penalty of 10 years imprisonment. A standard non-parole period does not apply to this offence.

8. Mr Cage and Mr Stamp pleaded guilty to count 3. Mr Stamp is entitled to a 25% discount on sentence to reflect the utilitarian value of that plea. Mr Cage’s plea of guilty was not entered at the first opportunity. He is entitled to a 5% discount for the plea of guilty.

Victim Impact Statement

9. In matters such as this, judges are asked to perform an impossible equation. No human life can ever be equated with any penalty, including a period of imprisonment. No gaol term, of any length, can return a loved one. A life should never be measured simply by the punishment meted out to an offender.

10. The sentence I impose does not, and cannot, measure the life of Mr King. Instead, it reflects the sentencing discretion informed by proper principle. It must reflect adequate punishment, deterrence, and denunciation, in addition to rehabilitation and the protection of the community. It must hold each offender to account and reflect the objective seriousness of the offence and each offender’s moral blameworthiness. It must also take into account each offender’s subjective case, prospects of rehabilitation, and the likelihood, or unlikelihood of future offending.

11. It is important to commence with an acknowledgment of the life lost. The deceased’s mother and stepfather have provided a victim impact statement. Unsurprisingly, the deceased’s family has suffered a great deal of distress as a result of the murder. Mr King’s mother has experienced immense pain and sorrow since the death of her son. Mr King played a major part in his family unit.

12. She has had to watch the impact that his death has had on his children. Acknowledging the deceased made mistakes in his past, he is described as a good son, father, brother, grandfather, cousin and uncle. The deceased’s parents moved out of the family home of over 20 years because they could not bear to remain in the home that reminded them so much of their son.

13. The deceased’s mother continues to struggle with her son’s death and finds herself uncontrollably shaking when she thinks of the events that occurred. The trial stirred up many other emotions for both the deceased’s mother and stepfather. I acknowledge that the deceased’s death has caused the family considerable distress and will likely do so for many years to come.

14. I turn to summarise the facts giving rise to the offending before I determine the objective seriousness of each offence. There are a number of disputed issues which I must resolve in the course of these remarks. I will proceed first to summarise the facts that are not in dispute, having regard to the jury verdicts, and of which I am comfortably satisfied.

Facts

15. Prior to his death, the deceased was involved in the supply of illicit drugs. AB was a long-term friend of the deceased and had, on occasion, purchased illicit drugs from him over a number of years prior to August 2021. AB would also arrange drug transactions through the deceased, taking a cut of the drugs on these occasions.

16. On 29 August 2021, AB arranged for the deceased to supply a quantity of methylamphetamine to Mr Cage, whom she knew but the deceased did not. In return for arranging this transaction she would receive a quantity of methylamphetamine from the deceased.

17. The offender, Mr Cage, was a friend of AB. They had known each other for several years prior to August 2021. The offender, Mr Lowcock, also knew AB prior to August 2021. Mr Stamp was a friend of Mr Cage. There appears to be no dispute that the offenders knew each other prior to August 2021.

18. On 20 August 2021, Mr Stamp hired a Hyundai Santa Fe (“the Santa Fe”) from Avis Budget Group. Mr Stamp hired the vehicle principally for the use of Mr Cage.

19. At about 3:47am on 29 August 2021, Mr Lowcock contacted AB via Facebook messenger, indicating that he wanted to purchase drugs. Later that morning, the pair met at the home of one of AB’s associates where Mr Lowcock purchased 0.3 grams of methylamphetamine from AB for $150. This transaction is unrelated to the offending conduct for which the offenders must be sentenced. In my view, the evidence of that drug transaction demonstrates no more than that Mr Lowcock was a user of methylamphetamine.

20. Between 5:39am to 8:59am on 29 August 2021, Mr Cage exchanged text messages with an associate named William Whelan. They discussed sourcing money to buy illicit drugs, including the possibility of robbing someone to do so. I am not satisfied that Mr Cage had formulated a plan to rob the deceased at the time that he spoke to Mr Whelan.

21. At about 8:00am on 29 August 2021, Mr Cage contacted AB, telling her that he wanted to buy drugs and requested that she source drugs for him. There may have been other communication in the early morning of 29 August 2021. The pair exchanged several messages and telephone calls throughout the morning. In cross-examination AB agreed that Mr Cage had initially told her that he wanted one quarter of an ounce of methylamphetamine and was willing to pay $2,400 for this amount.

22. These arrangements were, on the part of Mr Cage, a feigned drug transaction. I am satisfied that he had no funds to purchase such a large quantity of methylamphetamine. I am satisfied that by the time he was exchanging messages with AB in an effort to make arrangements for the feigned drug transaction, he intended to “rip off” a drug dealer to obtain money and drugs. It is unclear on the evidence as to whether Mr Cage had targeted the deceased by this time. However, I am satisfied that by about 11:13am, when Mr Cage made a telephone call to another associate named Darcee Martin, he had identified the deceased as a target of a robbery.

23. AB believed that she was assisting in setting up the sale of methylamphetamine from the deceased to Mr Cage. AB arranged for the deceased and Mr Cage to meet at Paul’s Corner to conduct the transaction. The arrangement was that she would receive 0.8 grams of methylamphetamine for her part in arranging the transaction.

24. At about 12:51pm on 29 August 2021, the Santa Fe drove through the car park of the BP service station at Paul’s Corner in Salt Ash. Each of the offenders were in the vehicle at this time. At about 1:20pm, the deceased, driving a Ford Ranger utility (the “Ford Ranger”), turned into Cecilia Close, Salt Ash.

25. AB, accompanied by Kristina Feeney, drove into Cecilia Close at about 1:25pm. AB approached the deceased’s car and observed that Mr Cage was seated in the back while the deceased sat in the driver’s seat. Mr Cage exited the car while the deceased and AB had a conversation.

26. During this conversation, the deceased asked AB how long she had known Mr Cage. She responded that she had known him for some years and that the deceased could trust him.

27. Thereafter, Mr Cage got into the back seat of the deceased’s car, and they discussed the price of the drugs. AB was present during this discussion and attempted to facilitate the negotiations. At the same time, Mr Stamp and Mr Lowcock approached the deceased’s car and got into the back seat next to Mr Cage. Mr Cage agreed to pay $5,000 for half an ounce of methylamphetamine. Mr Stamp and Mr Lowcock got out of the deceased’s car.

28. Mr Cage wanted to try the product before finalising the transaction. The deceased told Mr Cage that he did not want to conduct the transaction on Cecilia Close. The deceased drove his vehicle into Hideaway Drive and pulled over to the side of the road (location 2). The Santa Fe, driven by Mr Stamp, pulled over behind the deceased’s vehicle. The deceased handed Mr Cage a satchel containing the quantity of methylamphetamine that he had agreed to supply. Mr Cage produced a pipe and put some of the methylamphetamine into the pipe to try the drug.

29. Mr Lowcock approached the deceased’s car and got into the rear passenger seat next to Mr Cage. AB was seated in the front passenger seat of the deceased’s car. Mr Cage and Mr Lowcock got out of the deceased’s car without paying for the drugs. AB also got out of the car and followed Mr Cage, remonstrating with him about the fact that he had not paid for the drugs.

30. Mr Cage retrieved a taser (contained in a casing similar to a mobile phone) from the Santa Fe and discharged it towards AB, impacting her chest. AB did not suffer any injury as a result. Mr Cage pushed past AB and approached the front passenger side of the deceased’s vehicle, which was open. AB gave evidence that Mr Cage was not armed with a firearm.

31. Mr Cage entered the deceased’s vehicle, demanding the deceased’s money and drugs. The deceased complied with this demand handing over a bag (possibly more than one bag) containing a small quantity of drugs.

32. Mr Cage then demanded money from the deceased. The deceased picked up a small bag containing a wad of cash. As this was occurring, AB approached the open front passenger side door of the deceased’s vehicle and said to Mr Cage words to the effect: “No, don’t do this. What are you doing?” and “Stop. Why are you doing this?”. AB gave evidence that she was crying and upset and trying to stop the robbery from happening.

33. The car began to move away along Hideaway Drive. As the car began to move away, Mr Lowcock dived into the rear of the deceased’s vehicle. AB agreed that she described to police the way in which Mr Lowcock entered the rear of the vehicle as follows:

“And he’s gone and put his foot down on the accelerator while Max has, um had hold of the back, ah, passenger door, and he’s kind of like – as his foot’s gone down – been – gone on the accelerator, I thought Max would have clean himself – himself up, but he just kind of went hop, skip and fell into the backseat of the car kind of thing.”

34. AB did not give evidence of seeing Mr Lowcock with a firearm when he dived into the rear of the deceased’s vehicle. The deceased drove the car along Hideaway Drive for a short distance. The car was swerving from one side of the road to the other, knocking over mailboxes. The Crown case at trial alleged that the deceased was shot once to the rear left hand side of his head and neck, by Mr Lowcock. A disputed issue in the sentencing proceedings is whether the Crown has established beyond reasonable doubt that Mr Lowcock was the shooter. It is one of the disputes I must resolve.

35. AB heard the noise of a firearm discharge and saw the deceased’s vehicle swerve off the road, striking a letterbox and then a tree. AB then ran to the deceased’s vehicle and observed Mr Cage get out of the vehicle covered in blood. AB gave evidence that she saw Mr Lowcock get out of the Ford Ranger, go around to the other side of the vehicle, and then back to the Santa Fe. It was after she was Mr Lowcock get out of the vehicle that she saw him in possession of the firearm.

36. Mr Cage took a number of items from the deceased’s vehicle. He took hold of AB’s shirt and began pulling her towards the Santa Fe. Mr Cage got into the rear seat of the Santa Fe, pulling AB into the rear seat next to him. Mr Lowcock got into the front passenger seat and Mr Stamp drove the vehicle away from the scene.

37. Police arrived at the scene at about 2:05pm, by which time it was evident that Mr King was deceased.

38. Arrangements were made, by Mr Cage, with Adam Garvey to swap from the Santa Fe to Mr Garvey’s vehicle. This was in an effort to avoid detection by the police. Mr Garvey is a friend of Mr Cage. Soon after, Mr Garvey drove to Raymond Terrace where he picked up AB, Mr Cage and Mr Lowcock. Mr Stamp remained with the Santa Fe that he later destroyed.

39. During the journey out of Raymond Terrace, in Mr Garvey’s car, Mr Cage was seated in the back seat next to AB. Sometime during the journey, Mr Cage dismantled the firearm, breaking it into smaller pieces.

40. The basis of liability relied upon by the Crown during the trial was one of extended joint criminal enterprise. In light of the jury verdicts in the case of Mr Cage and Mr Lowcock, I proceed to sentence these offenders on the basis that they were party to an extended joint criminal enterprise to rob the deceased whilst armed with a loaded firearm, foreseeing the possibility that he would be shot with at least an intention to inflict upon him grievous bodily harm.

41. The jury were instructed on more than one occasion that they could not find the accused guilty of murder unless they were satisfied beyond reasonable doubt that either Mr Cage or Mr Lowcock, with the knowledge of the other, brought the loaded firearm to the scene with the intention of robbing the deceased.

42. The evidence at trial was that Dakota Clarke, who was Mr Cage’s girlfriend at the time, was in possession of the murder weapon hours before the shooting. Having regard to the jury verdict, I am satisfied Mr Cage had access to the murder weapon and it was he who brought the loaded firearm to the scene for the purpose of robbing the deceased and that Mr Lowcock, shortly before the shooting, was aware of its existence and the purpose for which it was to be put to use.

Identity of the Shooter

43. The Crown contends that I would proceed to sentence Mr Lowcock on the basis that he discharged the firearm. In support of that contention the Crown relies upon the combination of the following circumstances:

1. The representations made by Mr Lowcock in a phone call with Sarah Peebles on 30 August 2021 relied upon as admissions.

2. Mr Lowcock was in the back passenger seat of the Ford Ranger as it took off.

3. DNA and fingerprint evidence placing Mr Lowcock behind the front passenger seat of the vehicle.

4. The length of the firearm being consistent with the firearm being discharged from the rear passenger side seat.

5. The trajectory of the wound being consistent with the firearm being discharged from the rear passenger side seat.

6. According to AB, Mr Cage said to Mr Lowcock as she was taken from the scene, “what did you do that for?” and an argument between Mr Cage and Mr Lowcock that followed. The Crown contends that the inference to draw from that exchange is that Mr Cage was asking Mr Lowcock why he shot and killed Mr King.

44. In response, Ms Rowan, on behalf of the offender, submitted that the Crown has failed to establish beyond reasonable doubt that Mr Lowcock was the shooter. In support of that contention, Ms Rowan points to the following combined reasons:

1. The jury’s finding of guilt is opaque as to whether any or all were satisfied beyond reasonable doubt of the offender’s direct liability.

1. The phone call on 30 August 2021 between the offender and Sarah Peebles may be said to be an admission to count 2 on the indictment, which was rejected by the jury.

2. Although there is evidence that Mr Lowcock “dived” into the back of the deceased’s vehicle as it was moving away, there is no evidence that the offender was in the back passenger seat of the Ford Ranger as it took off.

3. Although the DNA and fingerprint evidence places the offender behind the front passenger seat of the vehicle at some time, it is not evidence that he was seated behind the front passenger seat of the vehicle at the time the vehicle drove away along Hideaway Drive or the time that the deceased was shot. The evidence establishes that Mr Lowcock was in the deceased’s vehicle on two separate occasions in Hideaway Drive.

4. There is no evidence that the length of the firearm was consistent with the firearm being discharged from the rear passenger seat.

5. There was no evidence at trial suggesting that the length of the firearm was “consistent with it being discharged from the rear passenger side”. There was also no evidence of the distance between the rear passenger seat and the driver’s seat; the arm length of Mr Lowcock; the arm length of Mr Cage; and the effect on the movement of the deceased, the offender and Mr Cage, the firearm or the general dimensions given that the vehicle was moving erratically and at a considerable speed.

6. There is no evidence that the trajectory of the wound is consistent with the firearm being discharged from the rear passenger side seat. The evidence of Dr Cala regarding the trajectory of the wound from the point of impact does not extend to any evidence about the position of the deceased’s head or neck at the time of impact.

7. The evidence of AB that Mr Cage said to the offender: “what did you do that for?” is not reliable and is not a sufficient basis to establish beyond reasonable doubt that Mr Lowcock was the shooter.

Resolution

45. The principles relevant to fact finding by a sentencing judge following a jury verdict are well established and are summarised in R v Isaacs (1997) 41 NSWLR 374 at 377-378:

“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: R v Harris [1961] VR 236; see also Kingswell v The Queen (1958) 159 CLR 264 at 283, per Mason J.

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. The fixing of an appropriate sentence ordinarily involves an exercise of judicial discretion, and it is for the judge to find the facts which are material to that exercise of discretion: Savvas v The Queen (1995) 183 CLR 1.

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. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict: cf Maxwell v The Queen (1995) 184 CLR 501. In the present case, for example, a trial judge might have considered that the facts supported a verdict of murder, not manslaughter; nevertheless, the judge would be obliged to sentence on the basis that the case was one of manslaughter. The fact that a judge may not agree with a jury’s verdict, and thus may be required to sentence on a basis different from the judge’s personal view of the case, is an inevitable consequence of the division of functions inherent in trial by 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.

5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender: R v Harris. However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. When that occurs, it will be because of the application of the principle referred to in 4 to the facts of the particular case, and not because of some principle requiring sentencing on the basis of leniency: R v Lupoi (1984) 15 A Crim R 183 at 184.”

46. There are occasions where it is not possible to make a finding about one or more factual matters pertaining to the events constituting the offending or the roles of individuals involved in the offending. It may be that a sentencing judge is simply unable to make findings either because of the absence of evidence or due to the unreliability of the evidence. So much was recognised in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70]:

“Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender’s moral culpability. Even so, it is sometimes not possible for the judge to ascertain everything which is relevant, especially where an offender chooses not to offer any evidence on the plea. Where that occurs, the judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard. As was stated in Weininger v The Queen:

“The sentencing judge may not be able to make findings about all matters that may go to describe [the] circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt. Accordingly, in the particular facts of Olbrich, where the offender asserted that he was no more than a courier of the drugs, but the sentencing judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier.”

That accords with the requirements in s 21A(1) of the Sentencing Act that facts be taken into account only in so far as they are “known to the court” according to the principles of proof laid down in Olbrich.”

47. This is a case where I am unable to make a finding as to the identity of the shooter. I am certainly unable to find beyond reasonable doubt that Mr Lowcock was the shooter. Although the Crown case at trial proceeded on the basis that Mr Lowcock was the shooter, the alternative basis of liability was one of extended joint criminal enterprise.

48. Mr Lowcock was in the deceased’s vehicle on two separate occasions. The DNA and fingerprint evidence, placing him behind the front passenger seat of the vehicle, is indicative of no more than that he was in that position on one or other occasion.

49. There was no expert evidence led as to the likely position of the firearm, given its length and other dimensions, when it was discharged. Unsurprisingly, there was no expert evidence as to the trajectory of the bullet. The clear evidence is that the firearm was discharged at a point when the deceased’s vehicle was moving erratically and colliding with various objects, including a concrete letterbox.

50. There was obviously difficulties with the evidence of AB, given the jury verdicts with respect to count 2. In addition, I had the opportunity of observing the witness give evidence. Like the jury, I found the evidence she gave about being detained, lacking in credibility. Even if I were satisfied that Mr Cage said to Mr Lowcock: “what did you do that for?”, I could not be satisfied beyond reasonable doubt on that evidence that Mr Lowcock was the shooter.

51. I am therefore left in a position where I cannot make a finding as to who shot the deceased. I proceed to sentence both offenders on the basis that the deceased was shot with at least an intention to inflict upon him grievous bodily harm and that each offender foresaw that possibility in executing the plan to rob him.

When was the plan to rob the deceased formulated?

52. The second issue in dispute relates to the timing of the instigation of the plan to rob the deceased. The evidence at trial was that about two weeks prior to 29 August 2021, Mr Cage had a telephone conversation with Kiara Piening, a mutual associate of Mr Cage and the deceased. Ms Piening had been in a relationship with the deceased and purchased drugs from him. She was also involved in the supply of drugs.

53. Ms Piening gave evidence that during this conversation, Mr Cage asked her whether she would help him rob the deceased and that he also told her that he had “the piece” or “a piece”. Ms Piening gave evidence that when the phone call ended, she “went and told” the deceased about what Mr Cage had said to her.

54. Having observed Ms Piening give evidence in the trial, I formed the view that she was an entirely unreliable witness. She was a user of prohibited drugs at the time of these events. She gave evidence that she was suffering from mental health issues at the relevant time. She also gave evidence that between the shooting and providing an account to police, she was using drugs and had no sleep.

55. I am not satisfied to the requisite standard that Mr Cage had formulated a plan to rob the deceased some two weeks before the shooting. Instead, I am satisfied that Mr Cage formulated a plan to rob a drug dealer early on the morning of 29 August 2021 and that the deceased had become the target of that plan at about mid-morning on that day. Mr Cage was in extensive text communication with AB on the morning of 29 August 2021, making arrangements to buy a large amount of methylamphetamine and negotiating the price. As indicated above, I am satisfied that this was a feigned drug transaction on the part of Mr Cage and that he had no intention of paying for the drugs.

56. The Crown adduced evidence at trial of video footage, taken in the early hours of 29 August 2021, depicting Ms Clarke (Mr Cage’s girlfriend at the time) in possession of a firearm which was the murder weapon. The footage depicts Ms Clarke parading up and down a street in possession of the firearm.

57. The jury must have accepted that the firearm in the possession of Ms Clarke, as depicted in the video, was available to Mr Cage to use in the robbery on 29 August 2021. The nature of the relationship between Mr Cage and Ms Clarke and the use of that very firearm to shoot the deceased only hours later, leads to the irresistible conclusion that Mr Cage had access to the firearm and brought it to the scene where the feigned drug transaction was to take place.

58. Having regard to the jury verdict, I accept that the jury rejected, as a reasonable possibility, that the firearm was the deceased’s and that he brought it to the scene.

59. The evidence does not establish beyond reasonable doubt that Mr Lowcock was party to the arrangements being made between Mr Cage and AB on the morning of 29 August 2021. Nor does the evidence establish that it was Mr Lowcock who sourced the firearm. The precise time that Mr Lowcock joined the extended criminal enterprise is unclear. I am however satisfied beyond reasonable doubt that Mr Lowcock was a party to the extended joint criminal enterprise by the time that he was in Cecilia Close and shortly before the shooting took place.

Objective Seriousness/Roles

60. At the forefront of an assessment of the objective gravity of the offence of murder is the taking of human life with either an intent to kill or an intent to inflict grievous bodily harm: R v Williams [2005] NSWCCA 99 at [44].

61. Objective seriousness and moral culpability are separate but related concepts. Matters personal to an offender may impact on an assessment of objective seriousness where they are casually connected to the offending: DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [71], [77].

62. The offenders are equally liable for all of the acts done in the course of carrying out an enterprise. However, each participant’s level of culpability is to be assessed by reference to their conduct: Lowe v The Queen (1984) 154 CLR 606 at 609; [1984] HCA 46. In Martinez v R [2022] NSWCCA 12 at [50] per Beech-Jones CJ at CL (as his Honour then was) stated at [50]:

“Where an offender’s guilt is established by his or her participation in a joint criminal enterprise then the offender is sentenced ’for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise’ (R v Wright [2009] NSWCCA 3 at [28] ”Wright”). However, an offender does not ’necessarily….receive the same punishment as would have been appropriate if he had himself personally performed all of those acts’ in that ’it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person actually performed the criminal act’ (Wright at [28]; R v JW [2010] NSWCCA 49 at [162]).”

63. An intent to kill is a consideration generally tending to greater objective seriousness than an intention to inflict grievous bodily harm: Charbaji v R [2019] NSWCCA 28 at [180]; Versluys v R [2008] NSWCCA 76 at [32]. Much will depend, however, on the nature and circumstances of the offending. Here, the offenders were not party to an agreement to shoot the deceased with an intention to kill or inflict grievous bodily harm upon him. Instead, I am sentencing them on the basis of an extended joint criminal enterprise, namely that they intended to rob the deceased whilst armed with a loaded firearm, foreseeing the possibility that he would be shot with at least an intention to inflict grievous bodily harm.

64. I am satisfied that in the circumstances of this case, the objective seriousness based on extended joint criminal enterprise is less than a case where the offenders were party to a joint criminal enterprise to shoot the deceased with an intention to kill him or cause him grievous bodily harm.

65. Although the assessment of objective seriousness of an offence is an essential element of the process of instinctive synthesis, there is no obligation or requirement for a sentencing judge to nominate a point on the scale of seriousness by reference to a notional midpoint. The use of descriptors such as “low end of the middle of the range”, “upper end of the middle of the range”, or just below or above ”the middle of the range”, add nothing of value to the process of instinctive synthesis in the determination of the proportionate sentence: DH v R [2022] NSWCCA 200 at [59]-[60]; Kochai v R [2023] NSWCCA 116 at [51]; R v Walker [2023] NSWCCA 219 at [55].

66. That said, during legal argument various descriptors were used in connection with objective seriousness. Mr Webb, on behalf of Mr Cage, submitted that the objective seriousness was “very high”. Ms Rowan, on behalf of Mr Lowcock, submitted that the objective seriousness is “in the mid to lower mid-range”.

67. I have taken into account the following factors in determining that the offending falls at the middle of the range of objective seriousness.

68. Firstly, although some deliberation was involved, in light of the fact that a loaded firearm was brought to the scene, the offence was relatively unsophisticated, and any planning involved did not rise to the level of “planning or organised criminal activity” contemplated by s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

69. The plan to rob the deceased was formulated by Mr Cage only hours before the plan was executed. Mr Lowcock joined the extended joint criminal enterprise only a short time before the deceased was shot. These are matters relevant to the role of each offender, a matter which will be addressed separately below. However, it is relevant to an assessment of the objective seriousness of the offence, that any planning or deliberation commenced only hours before the commission of the offence.

70. The offence is a serious example of extended joint criminal enterprise because a loaded firearm was brought to the scene with the intention of using it to rob the deceased. In light of the fact that I have taken into account the use of a weapon in assessing the objective seriousness of the offence, I do not intend to take that fact into account as a further aggravating factor.

71. In relation to aggravating factors, pursuant to s 21A(2) of the CSPA, I have had regard to the following:

1. Firstly, the offence was committed in company: s 21A(2)(e) of the CSPA.

2. Secondly, the offence was committed with disregard for public safety: s 21A(2)(i) of the CSPA. A firearm was discharged in a moving vehicle which was travelling on a suburban street.

3. Thirdly, both Mr Cage and Mr Lowcock have prior convictions for serious personal violence offences: s 21A(2)(d) of the CSPA.

4. Fourthly, both offenders were subject to conditional liberty at the time they committed the offence: s 21A(2)(j) of the CSPA.

72. I note that with respect to the third and fourth aggravating factors, they do not operate to increase the objective seriousness of the offence. They are separate aggravating factors that I have taken into account in determining the proportionate sentence.

73. Another area of dispute during the sentencing proceedings was the reliance by the Crown on the presence of a child as an aggravating factor. The Crown submitted that a further aggravating factor is that the offence was committed in the presence of a child: s 21A(2)(ea) of the CSPA. The Crown points to the evidence of KV, then aged 11 years, who was an eyewitness to the events.

74. I am not satisfied that this aggravating factor has been established. KV witnessed some of the events that took place in Hideaway Drive including the collision of the deceased’s vehicle with the tree. No doubt this would have been distressing for the witness. However, he did not witness the shooting itself. Nor is it clear that the noise he heard was the discharge of the firearm as opposed to a noise associated with the collision. In any case, I am not satisfied beyond reasonable doubt that the Crown has established, as an aggravating factor, the presence of a child.

Roles

Role of Elijah Cage

75. It is accepted on behalf of Mr Cage that he took “all the steps necessary” to put in place a plan to rob the deceased. Mr Cage initiated contact with AB in an effort to arrange a feigned drug transaction. As indicated above, I am also satisfied that it was Mr Cage who had access to the firearm and brought it to the scene. It was Mr Cage who took the initiative and made the necessary arrangements. His role, in my view, is more serious than that of Mr Lowcock.

Role of Max Lowcock

76. I have been unable to find that Mr Lowcock was the shooter. He did not initiate contact with AB to arrange the feigned drug transaction. Mr Lowcock did not source the firearm. As indicated above, the evidence does not allow for a finding that Mr Lowcock was a party to the extended joint criminal enterprise any earlier than very shortly before the shooting. Mr Lowcock played a lesser role in the offence than Mr Cage, warranting a lesser sentence.

Count 3

77. I must also sentence the offenders, Mr Cage and Mr Stamp, in relation to count 3 on the indictment. Factors relevant to assessing the objective seriousness of the offence of recklessly destroying by means of fire property have been explored by the courts in various cases. Those factors include:

1. Extent of the damage caused: R v Elzakhem [2008] NSWCCA 31 at [45]; Porter v R [2008] NSWCCA 145 (“Porter”) at [56].

2. Potential risk of injury to other people: Porter at [80]; R v Dinos [1999] NSWCCA 208 at [8]-[10].

3. Possible spread of the fire: R v Baker [2000] NSWCCA 85 at [16]; Porter at [80].

4. Offender’s knowledge of the financial effects of their conduct: R v Priest [2000] NSWCCA 27 at [14].

5. Offender’s motive - although the lack of motive does not mitigate the seriousness of the crime: Porter at [81], [84].

6. Degree of planning and premeditation: R v Karibian [2007] NSWCCA 334 at [28], R v VAA [2006] NSWCCA 44 at [45].

78. The evidence is silent about the potential risk of injury to others and the possible spread of fire. There was little planning or organisation involved, although I accept that the motor vehicle was comprehensively destroyed.

79. After transferring to Mr Garvey’s vehicle, Mr Cage directed Mr Stamp to “get rid of the car”. At about 2:06pm on the same day, a recorded telephone conversation reveals Mr Cage insisting that the offender burn the vehicle and Mr Stamp repeatedly expressing reluctance and unease about that proposal.

80. Ultimately, Mr Stamp did take the vehicle to a vacant industrial lot in the Heatherbrae area and set it alight. The unsophisticated nature of the offending is demonstrated by the fact that Mr Stamp was recorded on multiple CCTV cameras leaving the area. In addition, Mr Stamp hired the vehicle without using a false identity.

81. The objective seriousness of the offence falls below the middle of the range. I find that Mr Cage was the instigator of the crime, and it was he who persisted with his request that Mr Stamp “get rid” of the vehicle. In Mr Cage’s case, I am satisfied that he was motivated by a desire to destroy the vehicle so as to distance himself from the shooting.

82. The Crown submitted that I would sentence Mr Stamp on the basis that he was aware that Mr Cage and Mr Lowcock got into the deceased’s vehicle and that the vehicle had crashed, seriously injuring the deceased. I accept that at the time Mr Stamp destroyed the Santa Fe, he was aware of those events having witnessed them whilst present in Hideaway Drive. However, to be clear, I do not sentence him on the basis that he destroyed the vehicle with the intention of destroying evidence connected with the murder of the deceased. In my view, to do so, would lead to error. Mr Stamp is not being sentenced for being an accessory after the fact to murder.

83. Although it was Mr Stamp who destroyed the vehicle, he did not instigate the plan. He was motivated by a misguided loyalty to his friend, Mr Cage. I find that his role in the offence is significantly less than that of Mr Cage.

Subjective Factors

84. I turn to consider the subjective case relevant to each offender.

Elijah Cage

85. The offender’s subjective case is before me primarily by way of two reports; one prepared by psychologist Julie Dombrowski dated 9 May 2024; and the other prepared by Forensic Psychologist, Jason Borkowski dated 4 April 2020; a letter authored by Carol Fogarty; one page document containing a summary of custody admission records relating to the offender; and written submissions.

Developmental History

86. Mr Cage grew up in Raymond Terrace. He has four brothers and a younger sister. His stepfather worked as a scaffolder and labourer, while his mother remained at home. Both his mother and stepfather had substance use problems. The offender suffered regular physical abuse at the hands of his stepfather, who frequently inflicted physical punishments. His home environment was both “tense” and “hostile”. Child protective services became involved on at least one occasion.

87. The offender’s biological father was not involved in his upbringing and the offender only saw him when he stayed with his paternal grandmother. His grandmother provided a letter to the Court, confirming that Mr Cage grew up in a volatile household and that he and his brothers were placed in her care for a period of 8-9 weeks.

88. The offender’s biological father has been diagnosed as suffering from a brain injury and schizophrenia. Mr Cage remains in contact with his mother who is supportive, however, has little contact with his biological father who also suffers from substance use issues.

89. From the age of 14, in an attempt to escape the violence, the offender began staying with friends. At times, he would find himself kicked out of home and was “stranded” without accommodation.

90. The offender attended school until Year 11. He struggled to develop his literacy skills and typically achieved “below average” grades. It is reported that one of his strengths was in mathematics. He was encouraged to repeat a grade in both primary school and Year 8 by his teachers. He was suspended on numerous occasions for arguing with teachers and being disruptive in class. He ceased attending school when he was placed in juvenile detention at about the age of 17. His basic care needs, such as food and clothing, were scarce at times whilst growing up.

91. Mr Cage’s troubled childhood saw him getting into trouble at a relatively young age and detained in juvenile detention from the age of 17. Mr Cage was sexually abused on two occasions by a worker whilst detained in a youth detention centre.

92. In 2017, he lived with his paternal grandmother, which was the only time he seems to have had stable accommodation. His employment opportunities were also limited. He worked in construction and as a carpenter’s assistant for a short period of time. His capacity to secure employment has, no doubt, been impacted by his frequent and regular periods of incarceration.

Substance Use History

93. Mr Cage has a history of substance abuse since the age of 16 when he started smoking methylamphetamine. He reported that by 18 years of age he progressed to daily use of “ice” which became a “lifestyle”. He became both physically and psychologically dependent on the substance. His drug use has also consisted of daily cannabis, alcohol, amphetamine and MDMA/ecstasy use in social settings. He last used methylamphetamine and alcohol about the time of his arrest for the subject offending. He has struggled with abstinence during periods of living in the community. He reported attempting to engage in a residential rehabilitation program in 2014 and completed the EQUIPS addiction program whilst in custody in 2023. He is now committed to maintain abstinence whilst in prison.

Medical and Psychological Profile

94. The offender reported experiencing speech difficulties since childhood, but never received speech therapy for those difficulties. He has sustained multiple head injuries, most recently after the subject offending in a car accident. He has experienced regular headaches and neck pain since then. He has not undergone any neurological testing for any brain injury.

95. In 2021, the offender was administered a psychological assessment for civil court proceedings in relation to the sexual abuse he experienced in youth detention. He reported that since then he began experiencing flashbacks of the sexual abuse. He further reported that he feels panicked in crowded places, nervousness and feeling on edge at times. He tries to avoid being alone, however, or in close proximity to correctional officers and feels distressed during strip searches which trigger reminders of the sexual abuse he experienced. He has attempted self-harm on one occasion but denies any history of parasuicidal behaviours.

96. At the time of the subject offending, the offender had been living in the community for about three months. One month after his release, he commenced using methylamphetamine, was associating with antisocial peers and was unemployed.

97. Mr Borkowski assessed Mr Cage in 2020. He concluded that the offender meets the DSM-5 Criteria for a diagnosis of Major Depressive Disorder with anxious distress and an Amphetamine Type Substance Use Disorder. Mr Cage presented with a developmental history marked by the absence of his biological father and a lack of paternal nurturance, guidance and support. Excessive physical punishments, neglect and dysfunction were features of his childhood. Mr Cage had a disrupted education as well as possibly undiagnosed and untreated attention deficit hyperactivity disorder (“ADHD”). Mr Borkowski concluded that the offenders profile presents a pervasive pattern of depressed mood, anxiety, irritability and, at times, hostility and anger.

98. Ms Dombrowski opined that the offender meets the criteria for Post-Traumatic Stress Disorder (“PTSD”). Ms Dombrowski remarked on the offender’s history as follows:

“Mr Cage has a history of significant disadvantage, and his offending is best understood in the context of his developmental history. He witnessed caregiver substance use and violence, and experienced neglect throughout much of his childhood, which warranted child protective services involvement on at least one occasion. He received little in the way of caregiver supervision to positively guide his social and moral development. Instead, he formed antisocial associations and became involved with the criminal justice system at a young age. Tragically, a youth justice worker sexually abused him while in youth detention at age 17. These experiences disrupted his attachments/ relationships and education/employment and have given rise to transient symptoms associated with Posttraumatic Stress Disorder (PTSD). He has used substances (primarily cannabis and methylamphetamine) to both conform with antisocial peers and to manage negative thoughts and feelings associated with adverse childhood experiences (including sexual abuse).”

99. Ms Dombrowski outlined a causal link between the offender’s offending and substance use as follows:

“He was using methylamphetamine heavily, which very likely impaired his judgement and decision making (and disinhibited his behaviour) at that time. He expressed remorse for his involvement in the subject offending and the harm he caused the victim and his family. He also expressed remorse for having involved a co-offender.”

100. In both psychological assessments, the offender was administered the Millon Clinical Multiaxial Inventory- IV (MCMI-IV) which suggested that he is depressive, fearful, socially anxious, self-pitying, and pessimistic. Ms Dombrowski further opined:

“The stressful and chronic nature of these experiences during his formative years alongside his early and heavy polysubstance use have likely interfered with the normal development of the frontal areas of his brain (i.e., the area of the brain largely responsible for higher-level cognitive processes such as emotional and behavioural regulation and moral reasoning and judgement), and shaped the development of an unstable personality structure (i.e., the lens through which he perceives, relates to, and thinks about the world and himself). Based on his history, his personality structure appears most in keeping with a Cluster B (Dramatic/Erratic) personality type with antisocial features. His personality structure makes him vulnerable to depression and anxiety. The emotional intensity and instability of people with Cluster B personality types increases their risk of engaging in emotionally reactive behaviours and falling foul of the law. The subject offending (and much, if not all his past offending) functions from his unstable personality structure (underpinned by childhood neglect and physical and sexual abuse) and his poorly controlled substance use. Antisocial associates are also clearly a factor in the subject offending.”

101. I will deal more comprehensively with the way in which Mr Cage’s background of deprivation and disadvantage is relevant to the sentencing exercise once I have summarised the subjective case of Mr Lowcock. Both men have had a profoundly disadvantaged and deprived childhood which has no doubt caused them considerable trauma that has gone untreated. In each case, that background of deprivation and disadvantage operates to significantly reduce their moral culpability.

Prospects of Rehabilitation

102. A summary of custody admission records tendered on behalf of Mr Cage on sentence, reveals that the offender has spent the majority of his adulthood in custody. He finds himself able to adjust to prison quickly and struggles to reintegrate in the community and establish a routine lifestyle. Clearly, the offender is institutionalised. He has had a great deal of difficulty adjusting to periods in the community.

103. Relevantly, Ms Skinner, Community Corrections Officer, was called to give evidence in the sentencing proceedings. Ms Skinner had prepared a “Pre-release report”, the purpose of which was to provide assistance to the Parole Authority, in part updating the Parole Authority about the offender’s attitude and behaviour in custody. Ms Skinner opined that the offender’s willingness to undertake intervention is questionable. He expressed being disinterested in participating in a number of custodial programs. Mr Cage told Ms Skinner that he wanted to “focus on his upcoming matters before the Supreme Court as his main priority and doesn’t about completing any programs”.

104. I accept that his reported disinterest in participating in custodial programs was at least in the period before the trial, partially related to the stress of the imminent proceedings in the Supreme Court where he was facing a serious charge of murder. I do not place weight on these expressions of disinterest and reluctance.

105. However, in concluding that, I am guarded about the offender’s prospects of rehabilitation, I have taken into account other factors, including a troubled criminal history. Mr Cage was dealt with as a child for offences that included affray, stalking and intimidation, and drug and property offences.

106. Relevantly, his adult offending consists of drug, property, and violence offences (including domestic violence related), for which he has received multiple Community Correction Orders (“CCOs”) and terms of imprisonment. At the time of the subject offending, he was subject to parole for ‘reckless wounding’, and a Conditional Release Order (“CRO”) for domestic violence related offending. He has previously breached court orders and demonstrated poor response to supervision whilst in the community.

107. It cannot go without comment, however, that having spent most of his adult life in custody, Mr Cage has received little by way of meaningful treatment and rehabilitation programs whilst in custody. As indicated above, I am satisfied that he is institutionalised. Ms Skinner conceded that the opportunity for intensive one-on-one psychological counselling in custody, is limited. Ms Skinner gave evidence that psychological counselling is available through intensive programs such as the Violent Offender Treatment Program (“VOTP”) and where a prisoner presents as being at risk to themselves or others.

108. However, on-going treatment involving one-on-one psychological counselling sessions, is limited in custodial facilities. It seems to me that the case for both Mr Cage and Mr Lowcock (which will be summarised below) is that each man has served substantial periods of their adult life in custody having received very little by way of meaningful rehabilitation.

109. Although both offenders must be sentenced to lengthy terms of imprisonment, I am not confident that their rehabilitation will be enhanced or facilitated during that period.

110. That said, I accept that Mr Cage has expressed some remorse. He reported to Ms Dombrowski: “if I knew something like that was going to happen, I would never have got involved…I feel so bad…someone died… I’m sorry I took away their loved one”. Mr Cage also expressed remorse for “dragging” Mr Stamp into the offending by asking him to destroy the motor vehicle.

111. Mr Cage will spend a substantial period in custody. His unlikelihood of reoffending upon his release will depend in large part on his willingness to undertake treatment programs and the availability of those programs whilst he is in custody. Ms Dombrowski opined that Mr Cage will require long-term treatment and management for his personality functioning and substance use to minimise his risk of re-offending. Treatment will need to address his experience of childhood trauma and abuse to achieve long-term behavioural change.

112. In addition, given that he has limited experience in living in the community he would require support which manages psychosocial factors such as housing, peers and social activities, and vocational training and employment to support his release from prison and return to the community.

Max Lowcock

113. Mr Lowcock’s subjective case is before me primarily way of two reports; one prepared by Consultant Psychiatrist, Dr Gordon Elliot dated 2 May 2022, and the other prepared by Psychiatrist, Dr Malcolm Foxcroft dated 30 September 2022.

Developmental History

114. Mr Lowcock’s background explains his entrenched substance use and offending behaviours. It is a background marred by profound deprivation, causing unresolved trauma. Mr Lowcock was born in Townsville and has one older sister. His parents separated when he was aged 4 or 5 and he stayed with his mother and her partners at Noosa on the Sunshine Coast. He reported that “my mum was depressed and unfit to be a mum [and] my dad was an alcoholic and bashed me.”

115. He was placed in the care of the Department of Community Services (“DOCS”) after his school reported that he had bruising consistent with physical abuse. While in the care of DOCS, he was placed in approximately 36-37 foster care placements from the age of nine.

116. The offender left school in Year 8. His behaviour was poor, and he was repeatedly suspended and expelled from multiple schools. He eventually received what is referred to as a “state exclusion”, which apparently stopped him from attending school. He was diagnosed with ADHD and was prescribed Ritalin for a short period. It is unclear to me how it was devined that further exclusion would benefit him.

117. The offender reported a history of employment, which consisted of working as a concreter, carpenter, and tiler. He does not have any formal qualifications in this trade, but largely learned on the job. He also worked when he was a teenager in a supermarket. His extensive drug use impacted on his ability to sustain employment.

118. The offender’s intimate relationships have been characterised by mutual substance use and conflict. He has limited contact with his family members. The offender has now spent a total of approximately ten years of his adult life in custody. He is clearly institutionalised. He committed the subject offence only months after being released to parole, relapsing into drug use soon after his release.

Sexual Abuse

119. The offender reported being sexually assaulted at the age of 11 whilst in foster care and at the age of 13 when he was in a juvenile justice facility. At first, the offender liked his foster father. He would take the offender and his foster brother fishing, and he described him as being “quite cool and used to chill out”. However, he “started to become a bit touchy”. The offender thought this was okay as he trusted the man who was not physically violent towards him. However, on the first occasion of sexual abuse, the offender was woken up by his foster father in the middle of the night and taken to the back shed, where he performed fellatio on the offender and then he asked the offender to perform fellatio on him till he ejaculated. He was told “not to say anything to other people.”

120. On another occasion, the offender was taken to the back shed when everyone in the house was asleep. His foster father struggled to maintain his erection and he bashed the offender. He reported “I didn’t know what to do and [he] got really mad and started to bash me and then he grabbed a beer bottle and he put it into my ass...he put a beer bottle up my anus and then he grabbed a wooden pole and did the same thing”. He was raped anally and found himself crying and bleeding. He was told “not to tell anyone and to go back to bed”.

119. On the third occasion, he was raped again in the chicken coop in the shed. He struggled “to push him and get away, but he tied his hands and then raped [him] again.” The offender was bleeding, hurt and sat there crying afterwards.

120. He eventually was taken to see a counsellor as he started to cut himself. The offender continues to have nightmares of the sexual abuse and shame. He uses drugs to manage the nightmares and flashbacks he experiences. Soon after DOCS placed him in residential care with Anglicare until the age of 13. However, once he left school and was in residential care, he began running away and using drugs to deal with his anger and trauma. He was charged and placed in remand in 2005 for an altercation with another boy resulting in a fracture to his ankle.

121. Mr Lowcock was also sexually assaulted during his time at Brisbane Youth Detention Centre (“BYDC”) where he was forced to perform fellatio and was raped anally by a prison guard. He reported that “he made me give him oral and when I started doing this, I spewed on his legs...the guard then went off and was furious and bashed me again and then grabbed me by the hair and bent me down over the toilet and then raped me”. The guard warned him that he if he told anyone he “could be killed.”

122. The offender has been in and out of foster homes and was living on the streets in Cairns at around the age of 16 and 17. He was living with his sister from 18 through to 21 years of age. During this time, he struggled to sustain employment due to being on drugs most of the time or intoxicated, resulting in him not showing up to work or fighting with his bosses. He eventually moved out of his sister’s place and met his daughter’s mother and was with her for about 6 months. They have one daughter together. He eventually moved to Newcastle for a year when he was 22 years old and has been in and out of custody since. He is currently involved in compensation redress care and is undergoing psychiatric assessment as part of the process relating to the sexual abuse he suffered.

123. The offender’s childhood neglect and sexual abuse resulted in the offender engaging in attempts to self-harm, suicide attempts and at times admissions to hospital.

Substance Use History

126. The offender has an extensive history of substance use commencing in childhood. He began smoking cannabis at the age of 11 and reduced his use at the age of 17 when he found himself being extremely anxious. The offender also has a history of excessive alcohol use commencing at the age of 11 or 12. He substituted drinking at the age of 17 for methamphetamines and heroin. Prior to his arrest, he was using methamphetamines in large amounts on a daily basis.

127. Dr Elliot opined that the offender’s drug use is consistent with a Cannabis Use Disorder, Alcohol Use Disorder, Stimulant Use Disorder and Opiate Dependency. He is currently prescribed Buvidal injections which helps him avoid using illicit substances in custody. He is also prescribed antidepressant medication.

Medical and Psychological Profile

128. The offender suffered from asthma as a child but did not report on any other physical conditions.

129. Several psychological tests were administered, the results of which indicate a diagnosis of PTSD, second Polysubstance Use Disorder, childhood ADHD, secondary Anti-social Personality Disorder and major psychosocial stressors. These diagnoses are indicative of the long-term impact of childhood neglect and sexual abuse. The offender also presented with a reliance on drugs and alcohol.

130. Dr Foxcroft remarked on that history as follows:

“Mr Lowcock has been subjected to catastrophic psychosocial stressors which would cause significant stress in the average person. He was a vulnerable child who had some pre-existing vulnerability factors prior to the history of the sexual assaults. His early childhood experiences have contributed some modest component to his overall psychiatric impairment. The history of the sexual assaults in foster care and in BYDC are the primary cause for his overall psychiatric impairment, secondary substance use and chronic criminal behaviours, frequent incarcerations and ongoing symptoms of PTSD and Substance Use Disorder. I would attribute 10% overall contribution to his pre-existing conditions and experiences and 90% to the effects of the sexual assaults in foster care and in BYDC.”

131. Dr Elliot also opined that the offender suffers from a mild obsessive-compulsive disorder. He reported an obsession with ordering his cell and when not in custody, behaves in a similar fashion at home. He arranges his letters, toiletries, and other personal items in a strict order. This behaviour has occasionally caused him problems with cell mates and also in his job at the bakery in custody. However, in his employment as a tiler, this behaviour has been encouraged by his employer.

132. Mr Lowcock was recently assessed by a Senior Mental Health Clinical Nurse Specialist on 9 April 2024 which revealed that he reported an increase of anxiety since the guilty verdict. He was angry “and wanted to smash his head against the ground and make his thoughts stop”. He has been placed in a camera cell and mandatory two-out cell placement due to concerns for his mental well-being.

Prospects of Rehabilitation

133. During the few short months Mr Lowcock spent in the community before his arrest he was using drugs and his mental health had significantly deteriorated. His drug use escalated significantly in the weeks prior to his arrest. He was using up to three grams of methamphetamines per day. His symptoms included being unable to sleep, and at times spending long periods awake for at least up to a week. He reported that he was also “on the run” for two weeks prior to his arrest. As a result, he did not attend his methadone program. He reported that his mental health “just spiralled and by the end I was almost begging to come back to jail.”

134. He reported that he was in a “toxic relationship” that he did not wish to be in and this led him to falling back into homelessness and “it felt like you’ve dealt with this shit all your life and you’ve had enough and parole are telling you how to live your life and make you jump through all these hoops and I try and tell them that homelessness leads back to drugs but they won’t listen.” He had limited contact with his mother and sister during this period.

135. Both Dr Elliot and Dr Foxcroft recommend that the offender undertake long-term psychotherapy from a clinical psychologist or psychiatrist skilled in the treatment of PTSD and substance use disorder arising from early childhood traumas. This should involve counselling that focuses on dialectical behaviour therapy, cognitive behavioural therapy and trauma counselling. He is currently prescribed Avanza. Dr Elliot recommended that Mr Lowcock could also be considered for an alternative antidepressant to better treat his OCD. It is also important to note that the offender is currently taking Buvidal injections to minimise the risk of relapsing into illicit drug use.

136. Mr Lowcock’s background and untreated trauma has resulted in entrenched substance abuse issues and criminal behaviour. His criminal record is troubling. He has a history of non-compliance with court orders and was subject to parole for serious offences when he committed the murder. The offender’s criminal history is extensive, and I have taken it into account in the way set out at [71(iii)].

137. I am guarded about the offender’s prospects of rehabilitation. He will spend a lengthy period in custody. The unlikelihood of his reoffending will in large part depend upon the quality of rehabilitative programs available in custody and upon the offender’s willingness to participate in such programs.

138. The offender has had a long history of abuse, neglect, isolation, rejection and trauma. It is little wonder that he is an angry young man who has difficulties with self-regulation and controlling impulsivity. He will require a lengthy and intensive treatment and support once he is released into the community.

Bugmy Principles

139. As indicated above, I find that Mr Cage and Mr Lowcock’s childhood’s were marred by considerable disadvantage and deprivation. The Crown has righlty acknowledged the evidence in that regard. It is deeply troubling that both men were neglected and abused during their childhood. The very adults that were entrusted with their care, inflicted physical and sexual violence upon them. The State was responsible for Mr Lowcock whilst he was in care. He was moved around from one placement to another and was the victim of abuse. He was let down in the most appalling way.

140. In R v Millwood [2012] NSWCCA 2, Simpson J (as her Honour then was) said at [69]:

“... I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP’s submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been ‘tragic and dysfunctional’. That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders.”

141. In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, the plurality held at [43]-[44]:

“[43] The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However this is not to suggest… that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

142. In R v MJ [2023] NSWCCA 306 Simpson AJA emphasised that the relevant link is between the profound disadvantage experienced by an offender and their impaired socialisation. At [5] her Honour eloquently observed:

“Implicit in those observations is recognition that a childhood or adolescence marked by profound disadvantage may have an inhibitory effect on the development of values, on the acquisition of a moral compass, and on the capacity to make behavioural decisions in accordance with prevailing social norms. The relevant causal connection is between the dysfunctional background and the offender’s impaired socialisation and adjustment to, and conduct in accordance with, those social norms. To search for a causal connection between the dysfunctional background and the offence in question is to bypass the larger issue and to focus too narrowly on the offence. It ignores the compromise of the “capacity to mature and to learn from experience”: Bugmy at [43]. The plurality in the High Court were, as I understand [40] and [43] of the judgment, acknowledging the pervasive effect of profound deprivation, which is not confined to the commission of a single offence (or series of offences).”

Tyson Stamp

143. The offender’s subjective case is before me by way of a report prepared by Clinical and Forensic Psychologist, Emma Collins, dated 26 April 2024; a letter under the hand of Andrew Smith, Chief Executive Officer of the Worimi Local Aboriginal Land Council dated 19 February 2024; a discharge summary under the hand of Dr Handapangoda, Resident Medical Officer dated 6 June 2023; a signed copy of a reference written by Debbie Stamp dated 8 May 2024, who is Mr Stamp’s mother; two extracts from the JIRS statistical database, one for the offence of destroy or damage property by fire/explosive, one from the Higher Courts and one from the Local Court; and two sets of submissions.

Developmental History

144. The offender was raised in Newcastle. He has a biological sister, an older maternal half-brother and two paternal younger half siblings. His mother is Aboriginal, and his father is of Torres Strait Islander heritage. His father resides in Cape York. His father met his mother when he came to New South Wales for work. Mr Stamp has spent limited time with his father but did not report any discordance in the relationship.

145. Mr Stamp had a “loving”, positive and stable upbringing. He also had a wider supportive family network which provided him with good support. His childhood memories were both “happy” and “fun”. He recalled playing both rugby league and swimming. His mother would use physical discipline as a form of punishment, but he denied that this had an adverse impact upon him.

146. In terms of his education, the offender struggled with concentration and was diagnosed with ADHD when he was about 8 years old. He became easily bored and had difficulty learning concepts. He received in-class support in Year 6 and was prescribed medication for his ADHD. He ceased that medication due to the side effects associated. Mr Stamp was disruptive at school and would often joke around. He was suspended on some occasions during primary and high school due to his disruptive behaviour. He did not have any issues maintaining close friendships and did not report any instances of bullying.

147. He left school after Year 9 and enrolled at Technical and Further Education (“TAFE”). He completed three years of a carpentry apprenticeship but was unable to finalise this when the business he was completing his apprenticeship with closed down. His employment history consists of net making, carpentry, sand blasting, spray painting and factory work. His longest period of employment was a role involving cutting gyprock for about two to three years. Prior to his arrest, he was completing handyman duties for a Land Council.

148. The offender has spent a considerable period in custody, on remand with respect to the charges laid against him. He completed a recent assessment with Dr Collins two weeks after he was released from custody. He reported that his priority was to settle back into the community and to secure employment. He is in the process of trying to obtain employment and updating his identification. Dr Collins is of the view that given the offender’s relatively consistent employment history, he has reasonable prospects of obtaining employment. In addition to this, Andrew Smith, Chief Executive Officer of the Worimi Local Aboriginal Land Council, described Mr Stamp as a respectful young man, good natured and kind and any behaviour that he has displayed, causing him to be charged was out of character.

149. He reported that since his release from custody he is relying on family support. Around the time of the offence, he was living with friends but since being released he has returned home and is living with his mother. I pause to acknowledge that Mr Stamp’s mother was present on many occasions during the trial and appeared to me to be committed to her son and extremely supportive of him. Mr Stamp has also developed friendships through school and playing football. These prosocial connections are necessary in assisting him to readjust to community life.

Psychological Profile and Medical History

150. The offender suffers from a range of health conditions that require constant management including Type II diabetes, high cholesterol, hypertension and chronic diabetic kidney disease. In addition, he requires monthly ocular injections to improve his vision.

151. Justice Health records and discharge referral documents from John Hunter Hospital reveal that the offender experienced visual problems whilst in custody, which included blurriness, dots and cloudiness to his visual field. He was assessed in early 2023 and diagnosed with bilateral diabetic retinopathy, which is a condition that can lead to vision reduction and blindness if diabetes is not well controlled. Justice Health Records further reveal that he received laser treatment in February 2023. His vision in his right eye had worsened over time and he was diagnosed in June 2023 with diabetic macular oedema. Justice Health records also indicate that his left eye was improving, but he began experiencing ongoing vitreous. He managed these issues in custody by receiving intravitreal injections. The offender is prescribed numerous medications to treat his various medical conditions.

152. The offender reported he suffered emotional dysregulation during his time in custody. He tested positive for COVID-19 upon entry and spent one month in isolation. He felt depressed and lonely, especially having no contact with his family initially. He felt sad and stressed in custody due to being subject to various periods of isolation, lockdowns, being separated from his family and being poorly treated by correctional officers.

153. Since his release from custody, his mood has stabilised, and he reported feeling happy and “good”. His sleeping patterns have improved, but he noted that he slept on the floor the first few nights because he struggled to cope with a softer bed. His appetite has also improved; however, he continues to feel lethargic, which may be due to his existing medical conditions. Dr Collins noted that Mr Stamp was focused on reintegrating back into the community since his release.

Substance Use History

154. The offender began using substances from approximately 18 years of age. He began using cannabis and ecstasy on the weekends when he was socialising with friends. He was using ecstasy regularly until the age of 21 when he substituted that drug with “LSD”. He commenced using amphetamines on most weekends and he began smoking “ice” and “crack cocaine” from 26 years old. He also consumed alcohol heavily on the weekends.

155. Since being released from custody, he has significantly reduced his alcohol use and remained abstinent. In the lead up to the offence, the offender was using illicit drugs on a regular basis. Dr Collins noted that it is evident that the offender’s substance use was escalating over time, particularly prior to the offence. It is opined that it is necessary that his reintegration in the community involves monitoring of his drug and alcohol use.

Prospects of Rehabilitation

156. The offender reported that his priority is to settle back into the community and to secure employment. He would like to regain his driver’s licence and he has had opportunities in securing employment including working at an oyster farm, gyprocking or completing building related work. His mother confirms that her son’s mental health has improved. She suspected that at the time of the offence he was “using drugs” and “hanging around people I didn’t know”. Since his release he has returned to associating with old prosocial friends and has also been offered a job with Cranes and Construction subject to him obtaining his driver’s license.

156. Dr Collins remarked on his current mental health as follows:

“It is positive that Mr Stamp’s mental health has improved since his release from custody. He appears future focused, with stable accommodation, family support and realistic employment goals. Whilst it is likely that his emotional functioning should continue to stabilise, it would be beneficial for Mr Stamp to be aware of local mental health services that he can access if required.”

158. I accept that the offender has expressed remorse for his involvement in the offence. He was sorry for his involvement stating, “I would go back and change it if I could”. He had engaged in escalating drug use in the lead up to the offence, however it appears that he is now drug free, and has returned to live at home with his family who continue to support him. His subjective history reveals that he has had a positive and stable upbringing. He has demonstrated an ability to sustain consistent employment. He has presented with good current functioning since his release and is on a range of medications to address physical issues. It is essential for him to abstain from drugs and alcohol use whilst in the community.

159. In terms of his prospects of rehabilitation, Dr Collins opined:

“In terms of therapeutic conditions, Mr Stamp does not present with any specific mental health needs. Risk of reoffending appears low but will increase should Mr Stamp return to stimulant drug use. As such, Mr Stamp may benefit from support regarding substance use, and a referral to the Hunter Primary Care drug and alcohol service could be helpful. That service is short-term and offers six to 12 sessions of therapy. A referral to that service can be made by Mr Stamp himself or through his General Practitioner.”

160. The prosocial influences on the offender’s life coupled with the absence of a relevant criminal record, lead me to the conclusion that the offender has very good prospects of rehabilitation and is unlikely to reoffend. He has strong support from his family and the steadfast support of his mother. He has abastained from illicit drug use and is keen to obtain employment. I am satisfied that the period Mr Stamp has spent in custody has taught him a salient lesson. I am also satisfied that he is genuine in his resolve to remain abstinent and lead a crime free life.

Purposes of Sentencing

161. Section 3A of the CSPA provides:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows—

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

I to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

I to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community

162. General deterrence is a particularly important consideration in determining the proportionate sentence. Mr Cage and Mr Lowcock used a loaded firearm to rob the deceased of his drugs and money. Mr Cage brought the loaded firearm to the scene with the intention of robbing the deceased and Mr Lowcock was aware of the existence of the firearm and the purpose for which it was to be used. The weight to be afforded to general deterrence is however tempered, to some degree, having regard to the profoundly disadvantaged and deprived childhood of these two men.

163. The criminal records of Mr Cage and Mr Lowcock, their non-compliance with court orders in the past and the very nature of the subject offence, are factors that give rise to countervailing considerations. In each case, the sentence I impose must reflect specific deterrence and the protection of the community. Each offender must also be punished and held to account for their actions.

164. In the case of Mr Stamp, specific deterrence and the protection of the community are not weighty considerations. Mr Stamp has a limited criminal history of little relevance in the sentencing exercise. He has progressed well whilst on bail. He was drawn into the offence at the persistence of his friend Mr Cage, and I accept that Mr Stamp was reluctant to destroy the motor vehicle.

165. I accept that Mr Stamp has very good prospects of rehabilitation and is unlikely to reoffend. The purposes of sentencing which include general deterrence, and holding an offender to account and punishment have been fulfilled in my view given that Mr Stamp has served a period of 2 years, 4 months and 22 days in custody solely referable to this offence. He has been more than adequately punished for his role in the offending.

166. Indeed, I accept the submission made on his behalf, that in the absence of Count 1 and 2 on the indictment (both of which he was found not guilty by way of directed verdict and jury verdict), it was inevitable that the offence contrary to s 195(1)(b) of the Crimes Act would have been dealt with in the Local Court. Not only did Mr Stamp lack any relevant prior criminal record, but the offence was motivated by a misguided loyalty to his friend as opposed to financial or other personal gain. This is a case where the possibility of summary disposal is a mitigating factor.

167. It was submitted on behalf of Mr Stamp that given the time he has already spent in custody; the appropriate disposition of the matter would be by way of a conviction with no further penalty pursuant to s 10A of the CSPA. The Crown, in written submissions, contended that the disposition of the matter pursuant to s 10A would not “in any way reflect the criminality of the conduct”. The Crown did not maintain that position in oral submissions.

168. Having found that the objective seriousness of the offence falls below the middle of the range and having regard to Mr Stamp’s very positive subjective case, I am not persuaded that a full-time term of imprisonment was the inevitable outcome had this matter been dealt with in the Local Court.

169. Furthermore, I have had regard to the fact that Mr Stamp has already been punished in that he has served a lengthy period in custody referable to the subject offence. Indeed, even if a term of full-time imprisonment was warranted, in my view, the time already served in custody, is in excess of any appropriate term of full-time custody. I also note that Mr Stamp was taken into custody in 2021. The COVID-19 restrictions were still in place causing increased periods of isolation, and related stress. Those restrictions also applied to the past period of custody that Mr Cage and Mr Lowcock were incarcerated, and I have taken that into account in each of those cases.

170. While I accept that disposition of the matter pursuant to s 10A may, at first blush, appear to be an unusual course, I am fortified in my view that it is the only appropriate course to take, having regard to the authorities referred to by the parties.

171. In R v Chant [2009] NSWSC 290 Howie J recorded a conviction with no further penalty for the offences of conceal serious offence and also improperly interfere with corpse or human remains. His Honour acknowledged that this was an “extraordinary course” and stated at [31]:

“It seems to me, and the Crown has accepted that it is open to me to do so, to take a fairly extraordinary course and that is to use a section of the Crimes (Sentencing Procedure) Act which, up until now, I have wondered as to its purpose. This is section 10 A which permits a court to dispose of proceedings after conviction without imposing any other penalty. I think it is important that the Offender be convicted and I think that to some degree denounces what he has done and shows that these were serious matters. It would not be appropriate to proceed without conviction, he should bear conviction for his role in this unfortunate part of his life, but I see no point in doing anything else to him.”

172. In R v Wilhelm [2010] NSWSC 378 Howie J again dealt with an offence of supply prohibited drug taking into account the significant extra-curial punishment of extreme publicity suffered by the offender.

173. Harrison J (as his Honour then was) utilised the section in R v Thomas [2017] NSWSC 1542. Mr Thomas was being sentenced for hinder investigation and had been committed to the Supreme Court on other matters which were ultimately discontinued. He had been held in custody for 6 months and 8 days as a result of those other charges. Relevantly to the present matter his Honour stated at [16],[19]:

“[16] Mr Thomas would appear to have committed the subject offence as the result of some misguided loyalty to another person or out of a sense of obligation. His decision to do so was not one that was in his own best interests. The consequences for him, including especially the period during which he was incarcerated upon remand, will no doubt remain with him always as constant and unpleasant reminders of his mistakes. I have no present reason to suspect that he will reoffend. The somewhat idiosyncratic nature of the circumstances that led to the commission of this offence tend as well to suggest that any further offending of this kind is highly unlikely. There are corresponding reasons to suspect that Mr Thomas therefore has good prospects for rehabilitation.

…

[19] In my opinion, this case is an appropriate case in which to proceed to dispose of the proceedings without imposing any penalty other than the recording of a conviction. The recording of a conviction alone is itself a not insignificant penalty: see, for example, R v Mauger [2012] NSWCCA 51. Indeed, the specific wording of s 10A(1), referring as it does to “any other penalty” implicitly indicates or at least suggests that the conviction of an offender is itself to be treated as, or considered to be, a penalty.”

174. In Nadarasa v R; Satkunarasa v R; Sivapathasunram v R [2018] NSWCCA 29 the Court upheld the appeals of the applicants who had previously been convicted of wounding with intent to cause grievous bodily harm contrary to s 33 of the Crimes Act. They were sentenced to 3 years imprisonment with a non-parole period of 2 years. By the time of the appeal that sentence had already been served. The Court substituted the convictions for an offence contrary to s 33B(2) which had a maximum penalty of 15 years. Given that the initial sentence had already been served the Court declined to remit the matter to the District Court for sentence as only a notional penalty would be imposed. Accordingly, they recorded a conviction but disposed of the matters without imposing any other penalty pursuant to s 10A of the CSPA.

175. In the case of R v King; R v York [2024] NSWSC 620 Adams J sentenced the offender, Ms York, for an offence of accessory after the fact to manslaughter. The offender was convicted pursuant to s 10A with no other penalty. In sentencing the offender, Her Honour had regard to the presentence custody of one year, seven months and nine days that the offender spent in custody remarking at [126]-[128]:

“[126] Under the Sentencing Act there are only two other sentencing options available to me: a conditional release order under s 9 of the Sentencing Act or a s 10A conviction without further sentence.

[127] I have considered whether to impose a conditional release order but given that Ms York has already served a longer period in custody than the length of any CRO I would have placed her on, imposing a further court order would be excessive.

[128] That leaves me with the only remaining sentencing option available in the Sentencing Act.”

176. Mr Stamp has already spent in excess of any proportionate term of imprisonment for the offence to which he has pleaded guilty. He has very good prospects of rehabilitation. In my view, the purposes of sentencing are fulfilled, in this unusual case, by recording a conviction pursuant to s 10A of the CSPA with no further penalty.

Totality

177. The totality principle is a recognised principle of sentencing that requires the aggregation of multiple sentences to reflect a “just and appropriate” measure of the total criminality involved: Mill v The Queen (1988) 166 CLR 59 at 62-63; [1988] HCA 70; R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15]; Elmir v R [2023] NSWCCA 260 at [41] per Dhanji J (Gleeson JA and Walton J agreeing).

178. The totality principle is not limited in its application to a consideration of the total criminality involved in the offences for which an offender is to be sentenced but extends to any offences for which the offender is already serving a sentence. In Postiglione v The Queen (1997) 189 CLR 295 at 308; [1997] HCA 26, McHugh J stated:

“Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.”

The most recent statement to this effect was made by Hunt CJ at CL in R v Gordon:

“When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.” (Footnotes omitted.)

179. Mr Cage and Mr Lowcock have a somewhat complicated, presentence custody history. The best way to set out that history is to do so in table form. In relation to Mr Cage, the following table sets out the relevant history:

Date	Sentence/Event
14.4.2020	Sentenced at Newcastle District Court in relation to Reckless Wounding to 2 years and 3 months imprisonment, to date from 8.11.2019 and expiring on 7.2.2022. The non-parole period is 12 months, expiring on 7.11.2020.
18.5.2021	Sentenced at Newcastle District Court (severity appeal) in relation to offences of intimidation, assault, reckless damage and larceny to a 2-year Community Correction Order, to date from 18.5.2021, concluding 17.5.2023.
4.6.2021	Released to parole on the offence of reckless wounding.
16.8.2021	Committed offences of police pursuit and unlicensed driver.
18.8.2021	Committed an offence of robbery in company.
29.8.2021	Committed the subject offences.
1.9.2021	Arrested for unrelated matters including the robbery in company offence and bail refused.
12.11.2021	Arrested and charged in relation to the subject offences. Bail refused on those offences.
11.11.2021	Call up on the breach of CCO. Sentenced to a further 3-year CCO from 11.11 2021 to 10.11.2024.
15.6.2023	Sentenced in relation to the unrelated offences of robbery in company and police pursuit to an aggregate sentence of 3 years 9 months imprisonment commencing on 1.12.2021 and expiring on 31.8.2025 with a non-parole period of 2 years 3 months expiring on 29.2.2024.
1.9.2021	The date from which Mr Cage has been in continuous custody.
12.11.2021	The date from which Mr Cage has been in continuous custody with respect to the subject offences.

180. Mr Cage has been in continuous custody in relation to the subject offences from 12 November 2021. He was also serving a sentence for unrelated matters, with a non-parole period that expired on 29 February 2024. In applying the principle of totality, I must have regard to the overall criminality involved in the subject and unrelated offences and impose a penalty being mindful that the total term of imprisonment the offender will serve, is not crushing.

181. In exercise of my discretion, I am satisfied that a period of concurrency is warranted, and I determine that the appropriate commencement date of the aggregate sentence to be imposed on Mr Cage is is 28 February 2023.

182. The following table sets out the relevant chronology in relation to the presentence history relating to Mr Lowcock:

Date	Sentence/Event
9.1.2017	Sentenced for offences of armed robbery, break enter and steal, and reckless wounding to an aggregate term of imprisonment of 7 years to date from 23.3.2017, expiring on 22.3.2024, with a non-parole period of 4 years and 3 months, expiring on 22.6.2021.
22.6.2021	Released to parole.
29.8.2021	Commission of the subject offence.
1.9.2021	Arrested for possessing a knife and breach of public health order.
8.9.2021	Parole revoked.
14.10.2021	Revocation of parole confirmed.
9.9.2021 – 24.3.2024	Served revocation of parole.
23.11.2021	Charged with subject offence and bail refused.
8.9.2021	In continuous custody from this date for revocation of parole.
23.11.2021	In continuous custody for the subject offence as well as revocation of parole.

183. Mr Lowcock has been in continuous custody for the subject offences since 23 November 2021. He was also serving a balance of parole which expired on 24 March 2024. Applying the principle of totality, as referred to above, I am satisfied that there should be a measure of concurrency between the term of imprisonment for the subject offence and the revocation of parole. In my view the appropriate commencement date for the term of imprisonment that I am about to impose is 24 March 2023.

Special Circumstances

184. Each offender urges a finding of special circumstances. A consideration of whether special circumstances exist, is not confined to a limited set of criteria. There are several factors that could justify a finding of special circumstances. There is no exhaustive list. The question as to whether such a finding is made will depend upon the circumstances of the individual case.

185. Mr Webb, on behalf of the offender Mr Cage, relies on the offender’s subjective material revealing a significant history of disadvantage whereby the availability of appropriate treatment will be best available in the community.

186. Ms Rowan, on behalf of the offender Mr Lowcock, relies on the need to ameliorate the risk of institutionalisation and promote the offender’s successful integration into the community upon release and ensure the protection of the community by minimising the opportunity for recidivism.

187. I am conscious of the fact that the statutory ratio, without variation, would allow for a substantial period of parole. However, I find special circumstances in the case of Mr Cage and Mr Lowcock, warranting some variation of the statutory ratio. I make that finding because I accept that each offender requires intensive treatment and counselling, including but not limited to trauma counselling, anger management and substance abuse treatment once released to the community. Such rehabilitation would be better facilitated in the community.

188. Each offender is institutionalised and will require treatment and support to reintegrate into community life and reduce the risk of recidivism. The protection of the community will only be served in a meaningful way if these offenders are provided with the intensive support necessary to prevent relapse and maximise prosocial development upon release.

189. Furthermore, I have had regard to the fact that in each case there will be a measure of accumulation between the term of imprisonment that I impose, and periods of imprisonment served for unrelated matters or the revocation of parole.

190. In determining the appropriate sentence, I have had regard to the two legislative guideposts, the maximum penalty of life imprisonment and the standard non-parole period. The offence of murder attracts a standard non-parole period of 20 years imprisonment. I decline to impose the standard non-parole period, having regard to the significant reduction in moral culpability brought about by the offenders’ profoundly deprived background.

191. Accordingly, I make the following orders.

Mr Stamp

192. On Count 3, the offender is convicted pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), with no further penalty.

Mr Cage

193. Mr Cage is convicted. I set out the indicative sentences as follows:

194. Count 1 – 21 years imprisonment with a non-parole period of 14 years.

195. Count 3 – taking into account a discount of 5% to reflect the utilitarian value of the plea of guilty, a fixed term of imprisonment of 2 years and 3 months.

196. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), I impose an aggregate term of imprisonment of 21 years and 6 months commencing on 28 February 2023 and expiring on 27 August 2044. I fix a non-parole period of 14 years and 6 months imprisonment commencing on 28 February 2023 and expiring on 27 August 2037. The first date upon which the offender is eligible for release on parole is 27 August 2037.

Mr Lowcock

197. Mr Lowcock is convicted. On Count 1, I impose a term of imprisonment consisting of a non-parole period of 13 years and 3 months commencing on 24 March 2023 and expiring on 23 June 2036, with an additional term of 6 years and 9 months imprisonment, expiring on 23 March 2043. The first date upon which the offender is eligible for release on parole is 23 June 2036. The total period of imprisonment is 20 years.

198. In compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) (“CHRO Act”), I note that the provisions of that Act have potential application to each offender. I direct that each offender’s legal representative advise him of the existence of the Act and its application to this offence.

**********

Amendments

02 September 2024 - Corrected grammatical error in [174] and hearing date on cover sheet

Decision last updated: 02 September 2024