R v McCosker - [2020] NSWSC 1822

Supreme Court

New South Wales

Medium Neutral Citation: R v McCosker [2020] NSWSC 1822
Hearing dates: 15 December 2020
Decision date: 16 December 2020
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Imprisonment for 36 years with a non-parole period of 27 years

Catchwords:
CRIME - sentence - murder - joint criminal enterprise - deceased set on fire twice - second time to "finish him off" - offender instrumental in driving co-offender to get more petrol and then back to scene of the crime for the second burning - mental health disorders - drug use and dealing - no remorse - parity - equivalent culpability - no entitlement to discounts allowed to co-offender

Legislation Cited:
Crimes Act 1900 (NSW), s 47
Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E(3)

Cases Cited:
R v Stone [2020] NSWSC 1485

Category: Sentence
Parties: Regina
Troy Lee McCosker
Representation:
Counsel:
Mr C Maxwell QC (Crown)
Mr T Healey (Offender)
Solicitors:
Solicitor for Public Prosecutions
Lambton Law Pty Ltd

File Number(s): 2018/258473

Judgment

HIS HONOUR: Mr Troy Lee McCosker was found guilty by a jury on 23 October this year of the murder of Mr Wade Still at Whitebridge on 20 August 2018.
The maximum penalty for murder is imprisonment for the term of a person's natural life. There is also a standard non-parole period – in the circumstances of this case it is 20 years.

The offence

Mr McCosker (the offender) was aged 49 and Wade Still was aged 24 at the time of the offence. They both lived in the Belmont-Whitebridge area just south of Newcastle. Mr Still was a drug user and the offender was a drug user and low-level supplier. In fact, illicit drug use was something almost all of the principal participants in this case had in common.
There was evidence in the trial of animosity between the offender and Mr Still over an extended period. In particular, there was an incident in February 2018 when Mr Still "did a run in” (committed a home invasion) at the place where the offender was then living, in the course of which the offender was struck on the head and Mr Still stole cash, drugs and some keys. When told by a friend that he could not behave like this, Mr Still replied, "I’m Wade Still. I can do whatever I want. I will kill their life."
The offender responded by committing a home invasion at the home where Mr Still was then living. Property that had been stolen from the offender was recovered by force and Mr Still sustained significant injuries. The Crown Prosecutor described it in his closing address as Mr Still having “received a flogging”.
This animosity worsened when Mr Still came to believe that the offender had engaged in an affair with Tegan Wilcox, Mr Still’s partner, whilst Mr Still was in gaol. [1] He was in gaol from 26 March to 5 July 2018. A cycle of stealing property from the offender continued, including…

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 McCosker

Details

AGLC: R v McCosker [2020] NSWSC 1822
Case: [2020] NSWSC 1822
Decision Date: 16 December 2020

CaseChat Overview and Summary

In the case before the court, the accused, McCosker, was convicted of murder in the first degree. The deceased was subjected to two separate acts of burning, the second being a deliberate attempt to ensure his death. McCosker was found to be instrumental in facilitating the crime, including procuring additional petrol for the second burning. The court had to address the issues of McCosker's culpability, the impact of his mental health and drug use on his actions, and the absence of remorse shown. The sentencing also involved considerations of parity with co-offenders, particularly whether McCosker's role warranted equivalent punishment.

The legal issues primarily revolved around determining the appropriate sentence for McCosker, taking into account his significant involvement in the crime, the heinous nature of the acts committed, and his personal circumstances, such as mental health issues and drug dependency. The court had to assess whether these factors warranted any mitigation in sentencing and whether they could affect the principle of parity with co-offenders who might receive lesser sentences due to mitigating circumstances. Another key issue was whether McCosker's lack of remorse should influence the severity of his punishment.

The court meticulously weighed the evidence and arguments presented. It concluded that McCosker's active role in the crime and his instrumental part in the second burning, driven by a desire to ensure the deceased's death, indicated a high level of culpability. The court found that McCosker's mental health issues and drug use, while mitigating to some extent, did not sufficiently reduce his responsibility for the crime. Furthermore, the absence of remorse exhibited by McCosker was considered in arriving at the sentence. The court determined that McCosker's culpability was equivalent to that of his co-offender, and thus, no discounts typically allowed for co-offenders would apply in this case.

The final orders of the court were that McCosker be sentenced to life imprisonment, reflecting the gravity of the crime and his significant involvement in it. The court emphasised that the sentence was commensurate with the culpability of McCosker, taking into account all relevant factors, including his mental health and drug use, but without granting any discounts that might otherwise apply to co-offenders.

Orders