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

1. 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.

2. 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

3. 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.

4. 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."

5. 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”.

6. 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 with the theft of a bag containing various items from the offender on 17 August, only a couple of days before Mr Still was murdered.

   1. Tcpt 254-5

7. The offender attempted to downplay the extent of the animosity on his part. For example, he said in a police interview, "I've got no problems with Wade … He wasn't a bad little kid … He's only a young fellow … He's just a little rascal". When challenged about such statements in the trial, the offender maintained that they were a true reflection of his attitude towards Mr Still through until the time of his death. [2] The jury may not have accepted that.

   2. Tcpt 498-500

8. Mr Still was looking for a car trailer in the days leading up to 19 August 2018. He was buying a car from his mother and needed to transport it from her home to a place where he was intending to have work done on it. He made enquiries of a number of people including Mr Stone. [3]

   3. This name is a pseudonym used because of the person's assistance to authorities.

9. Mr Stone gave evidence that he had known Mr Still for at least 15 years. He said in his evidence that it was a “love/hate relationship”. He explained that Mr Still annoyed people because he stole “off everyone” but “he was a young fellow trying to grow up” and Mr Stone said, “I tried to look after him a bit”. Mr Stone was also a drug user in 2018. [4]

   4. Tcpt 252-3

10. Mr Stone was aware of Mr Still's theft of the offender's bag and contents on 17 August and he involved himself in trying to retrieve them. Ultimately the items were restored to the offender; how that occurred being of no present relevance. [5]

    5. Tcpt 255-7

11. Sometime on 19 August, Mr Still contacted Mr Stone who agreed to show him the location of a car trailer that belonged to Mr Stone’s father-in-law. The idea, according to Mr Stone, was for him to show Mr Still the location of the trailer so that if it were available for Mr Still to borrow he would know where to retrieve it. [6] Mr Stone told Mr Still where to meet him and that he should bring some petrol with him. Mr Stone needed petrol because the trail bike he was using was low on fuel. [7]

    6. Tcpt 257-9

    7. Tcpt 262-3

12. Mr Still purchased fuel and then went to the place nominated by Mr Stone to meet up with him, a place referred to as Ringal Valley, near Windale. [8]

    8. Tcpt 162-3; 262-3

13. From there, Mr Stone and Mr Still went off on the trail bike with Mr Still as pillion passenger carrying a container of fuel. They travelled north on the Pacific Highway and turned right onto Oakdale Road. According to Mr Stone’s evidence, the bike ran out of fuel in the vicinity of a disused quarry on Oakdale Road. They pushed the bike off the road and into the quarry. For reasons which are not entirely clear, they proceeded 250 metres into the quarry away from the roadway before stopping to refuel the bike. [9] Mr Stone’s explanation that they were looking for some object to lean the bike up against so that they could refuel it is difficult to understand.

    9. Tcpt 264-6

14. It was very cold. Mr Stone gave Mr Still a jacket; he said he was able to spare it because he had two because he was riding the bike. Mr Still gathered some grass and lit a fire. In doing so, he put some fuel from the fuel container into a bucket [10] in order to tip onto the fire to help start it. The pair had a cigarette as well as some Xanax tablets supplied by Mr Still. [11]

    10. A discarded bucket happened to be at the scene.

    11. Tcpt 267-270

15. After standing around for about 10 or 15 minutes, Mr Stone went to put some more grass on the fire. While he was doing so he perceived that Mr Still was going to splash him with something that he thought was petrol. In response, Mr Stone kicked the bucket that still contained some fuel towards Mr Still. Mr Still was about 3 to 5 metres away from him and beside the fire. [12]

    12. Tcpt 270-1

16. Mr Stone said that he saw "just a big flame, that was it". He rode off on the trail bike. He rode to the nearby home of a friend in Ocean Street, Dudley. There he sent texts and tried to make a number of calls until ultimately he was able to make contact with the offender. [13]

    13. Tcpt 272

17. The events in the quarry occurred sometime between about 11.30pm and midnight. Meanwhile, at about 11.40pm in the Windale area, the attention of police had been drawn to the offender driving his Toyota Landcruiser fast and with no headlights. It was stopped and searched and a small quantity of cannabis was found. [14] The offender said he was given a move on direction. [15]

    14. Tcpt 228ff; 312ff

    15. Tcpt 488.36

18. At about 12.10am, Paul Finlay and Kathryn Holt were driving past the quarry in Oakdale Road and saw a young man, obviously Mr Still, dishevelled, seemingly covered in mud, screaming, yelling and waving his arms. [16]

    16. Tcpt 339-342

19. Mr Stone managed to make contact with the offender at 12.31am. According to the offender's evidence, after the police had allowed him to leave he drove (seemingly as a complete coincidence) to the quarry in Oakdale Road. He entered the quarry in order to smoke some heroin for pain relief purposes. [17] He told police in an interview on 21 August 2018 that he had pulled into the quarry in order to tidy up his car after the police search. [18] Putting that discrepancy aside, the offender agreed to give Mr Stone a lift and drove to Dudley to pick him up. [19]

    17. Tcpt 457

    18. Exhibit G Q20; Q60

    19. Tcpt 274; 459-460

20. Mr Stone told the offender that he needed to talk to him because "something had just happened". The offender drove them to the Whitebridge Cemetery. It may be inferred from the CCTV evidence that they were in the cemetery for some period between about 12.37 to 12.47am.

21. Mr Stone told the offender what had just occurred at the quarry: "I said that … me and Wade were just in the bush, I said, and I think I've kicked petrol at him and, you know, could be in a bad way". [20]

    20. Tcpt 275

22. The pair then drove to the quarry. The offender slowed the vehicle and turned to drive into the entrance but then pulled away back to the roadway. Mr Stone asked, “What are you doing?” The offender replied, “Didn’t you see him on the ground?” (It may be inferred from the descriptions given by passing motorists that the offender must have seen that Mr Still was in quite a helpless condition.) Mr Stone did not see anyone, but he asked:

“Should I ring an ambulance or should I finish him off?”

23. Mr Stone could not recall whether the offender said anything. Neither of them called an ambulance. [21]

    21. Tcpt 276

24. The offender drove away from the quarry. Mr Stone used the offender's phone to ring a friend, Jasmine Kuczynski, and asked her if she could provide him with a container of fuel. She agreed. Mr Stone arrived in a car driven by someone else with whom she did not speak. She went out to the front of her home with a fuel container and gave it to Mr Stone. ^[22]

    22. Tcpt 186-9; 277-8

25. At about 12.50am, Ms Emily Barrett was driving along Oakdale Road and saw someone hobbling and staggering near the quarry. [23] This must have been Mr Still but whether it was before or after the offender and Mr Stone had been there is unclear.

    23. Tcpt 317

26. At 12.55am, Mr Daniel Stace was driving by and heard a high-pitched, muffled call for help. There was no fire in the area. He slowed down but did not hear the noise again. [24]

    24. Tcpt 343

27. The offender and Mr Stone arrived back at the quarry. The offender stopped on the roadway and Mr Stone alighted with the fuel container. He went 5 or 10 metres behind the vehicle. He poured petrol on or near Mr Still and ignited it. He did not think that he poured petrol directly onto Mr Still but accepted that there was a chance that he did. (I am satisfied beyond reasonable doubt that he did; evidence of Mr Still's DNA being found on the fuel container and its spout as well as a dying statement by Mr Still confirm it.) Mr Stone agreed that there was a big flame when he lit the fire, like "whoosh and up she went". He got back into the offender’s car and they drove off. [25]

    25. Tcpt 278-287

28. An issue was raised in the closing address of counsel for the offender as to whether Mr Still was burnt at all on this occasion. The jury were directed as to causation and the relevance of an alternative offence being charged in the indictment. [26] That was in the event that the jury were not satisfied that there was a second burning which contributed to the death of Mr Still. Clearly, the jury were satisfied beyond reasonable doubt that there was a second burning that had that result.

    26. Lay an explosive substance, namely petrol, with intent to do grievous bodily harm (Crimes Act 1900 (NSW), s 47)

29. The offender and Mr Stone drove to a location referred to as Rainbow Sands, otherwise the Belmont Wetlands. There his vehicle stopped due to some electrical problem. Mr Stone alighted and called Ms Kuczynski with a view to getting a lift home. [27] The offender waited until two friends arrived to rectify the problem.

    27. Tcpt 288

30. Meanwhile, the driver of a taxi on Oakdale Road saw the fire no more than two minutes after it had been lit. He initially thought it was a grass fire and contacted the fire brigade but when he became aware that a person was involved, he called the ambulance. This triple 0 call was very chilling evidence for the jury to have to hear, given the wailing sounds of pain of Mr Still that could be heard in the background. [28]

    28. Tcpt 319ff; Exhibits P & Q

31. The ambulance officers gave appropriate attention to Mr Still and arrangements were made to air lift him to Royal North Shore Hospital in Sydney. Tragically, he died en route and the flight was diverted to John Hunter Hospital.

32. An autopsy examination revealed that Mr Still had died of “effects of fire”. There was a mixture of partial thickness and deep burns to 90 per cent of his body. Because of the extensiveness of the burning, the forensic pathologist was unable to say one way or the other whether petrol had been poured onto the body. It was also why she was unable to say whether there had been one or more than one burning. [29]

    29. Tcpt 335-6

33. The cross-examination of Mr Stone by counsel for the offender during the trial resulted in concessions being readily made that the offender had not told Mr Stone what to do and nor had he verbally encouraged him in any way. Equally, however, Mr Stone appears not to have said anything more to the offender as to what they should do. It follows that the offender willingly accepted the second part of Mr Stone's suggested course of action, namely to "finish him off". He needed no convincing. Indeed, the Crown Prosecutor put to the jury in closing address that the murder would not have occurred without his actions. He was instrumental in taking Mr Stone to the home of Ms Kuczynski to obtain the petrol and returning him to the quarry where he sat in his car whilst Mr Stone did what he did.

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

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

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

The relative seriousness of the offence

36. The starting point for an assessment of the objective gravity of the offence is to acknowledge the manner in which the death was caused. I described it in the following way when sentencing Mr Stone:[30]

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

30. R v Stone [2020] NSWSC 1485 at [42]

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

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

39. The fact that the offender was not involved in the earlier burning of Mr Still in the quarry is immaterial to his culpability in much the same way as I considered that was the case in sentencing Mr Stone. I said: [31]

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

31. R v Stone at [46]

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

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

Victim impact statements

42. Statements by each of the parents of Wade Still were provided at the sentence hearing yesterday. They also provided statements at the sentencing of Mr Stone. I again acknowledge their courage in writing and providing these statements. Each in their own way poignantly describes the depth of grief and sorrow that can be inflicted by a cruel and utterly senseless act. My sympathies are once again extended to Wade's parents, his siblings and all who were close to him.

43. The Crown made an application pursuant to s 30E(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that the Court should take the death of Mr Still into account as harm done to the community.

44. The proposition that the loss of a human life is harmful to the community is not something newly established by modern sentencing legislation. John Donne wrote almost 400 years ago:

"Each man's death diminishes me,

For I am involved in mankind." [32]

32. “Devotions Upon Emergent Occasions”, 1624.

45. The death of Wade Still is a form of harm to us all.

Background and personal circumstances of the offender

46. The offender was born in Belmont in 1969. He is now aged 51.

47. He grew up in the Belmont-Newcastle area. He endured family tragedies of his mother dying when he was aged four from leukaemia and a brother dying in 1990 from an accidental overdose. He completed Year 10 at high school. He worked in a bakery for six years and then completed a carpentry apprenticeship. He worked as a carpenter until 2012 when he suffered a workplace injury resulting in severe lacerations to his left forearm that left him with ongoing difficulties of weakness, decreased sensation, cramps and pain. He has not worked since. He was prescribed Lyrica prior to his arrest and has been given Endep in custody. He has also self-medicated (see below).

48. The offender had been in a relationship with a woman, Kylie, for some years. He has described it as "sort of on and off". They have three daughters aged from 19 to 25. He was homeless and was sleeping in his car at the time of the offence.

49. Drugs and alcohol have featured in the offender's life since his early teenage years. He has been a regular user of cannabis, amphetamines, heroin and benzodiazepines. The cannabis and heroin, at least, appear to have been used in recent years as a form of self-medication for pain associated with his workplace injury. He has never engaged in any detoxification or rehabilitation programs. Dr Christopher Bench, forensic psychiatrist, described the offender's substance use as "prodigious".

46. Dr Bench made diagnoses of Post-traumatic Stress Disorder, Stimulant Use Disorder, Opioid Use Disorder and Cannabis Use Disorder. The latter three were either in remission or in therapy. (In prison, he is receiving Suboxone, a treatment for opioid dependence.)

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

48. Under the heading "Past Psychiatric History", Dr Bench included the offender's account of having no energy and lacking motivation. It was not apparent from the evidence in the trial that there was any way in which the post-traumatic stress disorder adversely affected the offender's ability to function or any aspect of his lifestyle. Counsel for the offender indicated at the sentence hearing that he could not point to anything in this respect, aside from the fact of his substance abuse issues. [33] The Crown pointed to evidence of the applicant's activities as a supplier of the drug ice and submitted that he clearly had the energy to do that. [34]

    33. 15.12.20 Tcpt 15-16

    34. 15.12.20 Tcpt 9.25

49. Dr Bench recommended that the offender should avail himself of any substance abuse treatment available in the custodial setting and he should receive treatment for his PTSD. He was unsure if Justice Health was aware of the condition and suggested that his report should be made available.

Criminal history

54. An offender with no previous convictions can be afforded some leniency but that cannot be said about Mr McCosker. He has a criminal history going back to 1990. It commenced with drink/driving, and continued with offences involving dishonesty, drug possession, housebreaking related matters, and knife and weapon possession. These were all dealt with in the Local Court with various outcomes, ultimately with imprisonment being imposed. In 2013, the record escalated in seriousness with a drug supply offence dealt with in the District Court but thereafter the offending reverted to matters that could be dealt with in the Local Court.

55. A particular matter of note is that on 3 July 2018 the offender was convicted in the Local Court of possessing a prohibited weapon without a permit. He received a bond to be of good behaviour for 18 months. That was only seven weeks before the murder. The offence occurred on 16 January 2018 and involved his possession of metal knuckle-dusters. He claimed to police, "They're for my hand because I can't straighten my fingers out".

56. It is an aggravating factor that the present offence occurred while the offender was on conditional liberty in relation to another offence.

Miscellaneous matters relevant to the assessment of sentence

57. The workplace injury sustained by the offender in 2012 effectively means he has lost the use of his left arm. It is also the cause of chronic discomfort and pain. The adverse consequences of this in the correctional environment will include that the offender will be less able to engage in work and other physical activities. His custodial experience will be more onerous as a result.

58. The offender has been held in custody since his arrest on 22 August 2018. A seven-day sentence of imprisonment for drug possession imposed on 9 October 2019 was ordered to date from 22 August 2018. Given the minor nature of that charge I propose to backdate the sentence I impose to the date of arrest.

59. It was submitted that there should be a finding of special circumstances which would justify a shorter non-parole period. The reasons suggested were various matters set out in the report of Dr Bench. [35] Those matters pertained to the offender's arm injury and his mental health and substance use issues that are all matters that have been considered in the assessment of the overall sentence. I do not accept that they provide a reason to shorten the non-parole period within that sentence.

    35. Written submissions at [30]ff

Sentencing of the co-offender and the principle of parity

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

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

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

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

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

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

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

Orders

67. Troy Lee McCosker is convicted of the murder of Wade Still at Whitebridge on 20 August 2018.

68. He is sentenced to imprisonment comprising a non-parole period of 27 years and a balance of the term of the sentence of 9 years. The sentence is to date from 22 August 2018. The offender will become eligible for release on parole upon the expiration of the non-parole period on 21 August 2045.

69. That is a total sentence of 36 years.

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Endnotes

Decision last updated: 16 December 2020