R v Cowan - [2025] NSWDC 100

District Court

New South Wales

Medium Neutral Citation: R v Cowan [2025] NSWDC 100
Hearing dates: 5 March 2025
Date of orders: 28 March 2025
Decision date: 28 March 2025
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
[97]

Catchwords:
CRIME — Violent offences — Attempt – Detain for advantage — Circumstances of aggravation — Specially aggravated offence
SENTENCING — Relevant factors on sentence — Co-offenders — Joint sentence proceedings – Joint criminal enterprise – Parity
SENTENCING — Probation and parole — Offence committed whilst on parole
SENTENCING — Subjective considerations on sentence — Mental health - Special circumstances

Legislation Cited:
Crime (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
DC v R [2023] NSWCCA 82
DPP (CTH) v De La Rosa (2010) 79 NSWLR 1
Leigh Brown v R [2014] NSWCCA 335
Lowe v The Queen (1984) 154 CLR 606
Muldrock v R (2000) 244 CLR 120
Postiglione v The Queen (1997) 189 CLR 295
R v Henry [1999] NSWCCA 111
R v JW (2010) 77 NSWLR 7
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v Schofield [2003] NSWCCA
R v Taouk (1992) 65 A Crim R 387
Veen v The Queen (No 2) [1988) 164 CLR 465

Category: Sentence
Parties: Crown, Joshua Cowan
Representation:
Crown: C Triscari
Defence: B O’Reilly

File Number(s): 2022/00383837
Publication restriction: Nil

JUDGMENT

Overview

On 21 November 2024, at the time of trial, the offender pleaded guilty to the following offence: –

Attempt to commit offence: take/detain in company with intent to commit serious indictable offence occasion actual bodily harm.

The offender adhered to his guilty plea on the sentence hearing.
The offender is to be sentenced with his two co-offenders who are also to be sentenced with respect to the identical offence. The maximum penalty for the offence is 25 years imprisonment with no standard non-parole period. The maximum penalty operates as a sentencing guidepost or reference point and reflects the seriousness of the offence for which the offender is to be sentenced.
Admitted on behalf of the Crown was the following:

Exhibit C1: Notice of Committal

Exhibit C2: Indictment

Exhibit C3: S166 Certificate

Exhibit C4: Statement of Agreed Facts

Exhibit C5: Addendum to Agreed Facts

Exhibit C6: Breach of Parole Report dated 23 December 2022

Exhibit C7: Revocation of Parole Order dated 18 January 2023

Exhibit C8: Determination by State Parole Authority in Respect of Review of Revocation Order dated 16 February 2023

Exhibit C9: Criminal History

Exhibit C10: Custodial History

Exhibit C11: Redacted Victim Impact Statement

Exhibit C12: USB containing three videos of offence

Admitted on behalf of the offender was the following: –

Exhibit O1: Joshua Cowan Juvenile Custodial History

Exhibit O2: Psychological Report under the hand of Dr Clara Fritchley dated 7 February 2025

Exhibit O3: Letter from Shine Lawyers dated 4 March 2025

Exhibit O4: Affidavit of Coral Booth dated 17 February 2025

Exhibit O5: Affidavit of Cheryl…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Cowan

Details

AGLC: R v Cowan [2025] NSWDC 100
Case: [2025] NSWDC 100
Decision Date: 28 March 2025

CaseChat Overview and Summary

In the case of R v Cowan, the defendant stood accused of multiple charges including the attempted detention of another for personal advantage and various violent offences. The case was heard in the higher courts of Australia, where the prosecution argued for a severe sentence due to the aggravated nature of the crimes and the defendant's history of violence. Cowan, who had a prior record, was also alleged to have committed the offences while on parole, which further compounded the gravity of his actions. The court was tasked with determining the appropriate sentence, taking into account the nature of the offences, the defendant's criminal history, and his conduct while on parole.

The primary legal issues before the court involved the assessment of the circumstances of aggravation, the principles of parity in sentencing for co-offenders, and the defendant's mental health as a mitigating factor. The court needed to weigh these factors against the severity of the crimes and the need for deterrence and public protection. Additionally, the court had to consider the defendant's parole status at the time of the offence, which influenced the sentencing framework. The defence argued for a lesser sentence citing Cowan's mental health issues, while the prosecution pushed for a harsher penalty due to the aggravating factors and the breach of parole conditions.

The court, after thorough deliberation, ruled that the offences Cowan committed were of a particularly serious nature, warranting a lengthy sentence. The court acknowledged the defendant's mental health issues but found that they did not sufficiently mitigate the severity of the crimes. The court also considered the need for parity in sentencing with co-offenders and the public interest in deterring such violent conduct. The defendant's breach of parole was deemed a significant aggravating factor, leading to an increased sentence. Ultimately, the court determined that the offences Cowan committed, especially given the circumstances of aggravation and his criminal history, required a substantial custodial term.

The final orders of the court mandated that Cowan be sentenced to a term of imprisonment, reflecting the severity of the crimes and the need to protect the public. The specific duration of the sentence was determined based on the court's comprehensive assessment of all relevant factors, ensuring that the sentence was proportionate and just.

Orders

Orders of the court

[97]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Cowan [2025] NSWDC 100
Hearing dates:	5 March 2025
Date of orders:	28 March 2025
Decision date:	28 March 2025
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	[97]
Catchwords:	CRIME — Violent offences — Attempt – Detain for advantage — Circumstances of aggravation — Specially aggravated offence SENTENCING — Relevant factors on sentence — Co-offenders — Joint sentence proceedings – Joint criminal enterprise – Parity SENTENCING — Probation and parole — Offence committed whilst on parole SENTENCING — Subjective considerations on sentence — Mental health - Special circumstances
Legislation Cited:	Crime (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 DC v R [2023] NSWCCA 82 DPP (CTH) v De La Rosa (2010) 79 NSWLR 1 Leigh Brown v R [2014] NSWCCA 335 Lowe v The Queen (1984) 154 CLR 606 Muldrock v R (2000) 244 CLR 120 Postiglione v The Queen (1997) 189 CLR 295 R v Henry [1999] NSWCCA 111 R v JW (2010) 77 NSWLR 7 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Schofield [2003] NSWCCA R v Taouk (1992) 65 A Crim R 387 Veen v The Queen (No 2) [1988) 164 CLR 465
Category:	Sentence
Parties:	Crown, Joshua Cowan
Representation:	Crown: C Triscari Defence: B O’Reilly
File Number(s):	2022/00383837
Publication restriction:	Nil