R v Stone

[2020] NSWSC 1485

Supreme Court

New South Wales

Medium Neutral Citation:	R v Stone [2020] NSWSC 1485
Hearing dates:	28 September; 1 October 2020
Decision date:	06 October 2020
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Imprisonment for 23 years 4 months with a non-parole period of 17 years 6 months
Catchwords:	CRIME - sentencing - murder - deceased set on fire twice - second time to "finish him off" - upper range of objective seriousness - genuine remorse - discount for early guilty plea and future assistance to authorities
Category:	Sentence
Parties:	Regina Stone (a pseudonym)
Representation:	Counsel: Mr L Carr SC (Crown) Mr T Evers (Offender) Solicitors: Solicitor for Public Prosecutions O’Brien Winter Partners
File Number(s):	2018/257407

Judgment

1. HIS HONOUR: Mr Stone (a pseudonym) has pleaded guilty and is to be sentenced for the murder of Mr Wade Still at Whitebridge on 20 August 2018.

2. The maximum penalty for murder is imprisonment for life. There is also a standard non-parole period that, in the circumstances of this case, is 20 years.

Victim impact statements

3. Impact statements by each of Mr Still's parents were read at the sentence hearing. They each provided their personal account of the profound loss this terrible crime has caused. Words are inadequate for me to attempt to describe their emotions, which I am not sure that anyone could fully comprehend in any event. I again acknowledge the courage of Ms Lowe and Mr Still; thank them both; and reiterate my sincere condolences.

Facts

4. The manner in which the offender killed Mr Still was unusual as well as extremely inhumane and painful. However, it also appears to have been utterly senseless; the evidence does not disclose any rational motive for it. Mr Stone said that he had a "love/hate relationship" with Mr Still but claimed that there was no animosity between them on the night of the murder. [1]

   1. Tcpt 77.25. See also 26.6.19 interview at Q22.

Mr Stone's prior statement that Mr Still "should be knocked"

5. The first point in the narrative concerns something disturbing Mr Stone said only days prior to the murder. On 17 August 2018, Mr Still stole a bag belonging to Troy McCosker. In his evidence at the sentence hearing, Mr Stone said that McCosker was "not really a friend", but someone he knew as a drug supplier. [2]

   2. Tcpt 32.4

6. Mr Stone and another man, Jake McCulloch, were concerned about getting the blame for the theft. They set out to recover and return the bag to McCosker. In this context, they had a conversation in which they spoke of their displeasure with Mr Still and their anger about being falsely accused. [3] Mr McCulloch's evidence of the conversation was: [4]

"It was pretty much a conversation of we weren't happy that Wade was going around doing what he was doing to people and it was starting to make other people look bad, like myself and I was just therefore said I wasn't impressed about it and he needs to stop doing the shit he was doing and with that, Macca [Stone] turned around and said he should be knocked.

Q. I'm sorry?

A. He should be knocked and I said, 'Yeah, but who will do it?' It was pretty much a – it was a brush off conversation, if you know what I mean. I didn't think nothing of it at all."

3. Tcpt 16.3-12

4. Tcpt 14.50

7. The offender denied saying that Mr Still needed to be "knocked", but Mr McCulloch was steadfast in maintaining that he did. [5]

   5. Tcpt 31.42; 17.28

8. In resolving the dispute between the evidence of the two men, I think Stone did say that Mr Still "should be knocked". Mr McCulloch's recollection appeared clear; he made a record of the conversation in his statement five days later; ^[6] and he did not appear to have any motive to be untruthful. However, I am not convinced that it was indicative of any serious intention Mr Stone had formed at that time. If there was more background information available – for example, something to explain what McCulloch meant by Mr Still "going around doing what he was doing to people" – then it might be possible to make more of it. To take into account a matter adverse to an offender on sentence it is necessary for it to be proved beyond reasonable doubt. I have a reasonable doubt about this matter.

   6. Tcpt 18.7

Mr Still's quest for a car float

9. Over the following days, Mr Still was trying to borrow a car float to transport a car he was buying. He approached a number of people including the offender. During the evening of 19 August 2018, the offender said he could obtain a car float from his father-in-law. It was not intended that it be collected that night but Mr Stone said he agreed to meet up with Mr Still and show him where it was. [7]

   7. Tcpt 52.14

10. Mr Stone asked Mr Still to get him some petrol and to meet him. He said he did this because he had a bike that was about to run out of fuel. He said it was a dirt bike which was unregistered, uninsured and had no lights and so he did not want to risk being seen by police by going to a service station. [8]

    8. Tcpt 32.47

11. Mr Still obtained some petrol from a service station and went to Ringal Valley [9] with his girlfriend, Paige Millan, to wait for the offender. The meeting place was on the Pacific Highway. Mr Stone travelled there on his bike. When he arrived, there is said to have been a conversation, but it appears incomprehensible in the context of the other evidence and nothing seems to turn on it. ^[10] What next occurred is that Mr Still went off with Mr Stone on the bike and Ms Millan went somewhere else. Mr Still rode as pillion passenger, carrying a container of petrol.

    9. This would appear to be a place on the Pacific Highway near Windale, about half way between Charlestown and Belmont

    10. Supplementary statement of facts (SS/Facts) at [7]

12. They travelled along the Pacific Highway, turned right into Oakdale Road, and then along Oakdale Road for about two kilometres until they reached a place referred to as a quarry. [11] Mr Stone's evidence was that they stopped here because the bike had run out of petrol. [12] They had not refuelled at Ringal Valley because it was on the highway and he was concerned about police seeing him with the unregistered bike. [13] (Why he did not stop to refuel soon after turning into Oakdale Road was not adequately explained.)

    11. On the south side of Oakdale Road, between Fernleigh Track and Redhead Road.

    12. Tcpt 33.45

    13. Tcpt 34.2

First incident at the quarry

13. According to the supplementary statement of facts: [14]

"The bike was pushed over a mound and then about 250 metres into the bush to a point near an abandoned boat. Whilst at that point there was an incident during which the deceased ended up with petrol on him that was ignited. The offender claimed to police in his second interview that this was an accident. The Crown does not accept the offender's account."

14. SS/Facts at [9]

14. Mr Stone explained that they went 250 metres into the bush in order to find something against which to lean the bike. It did not have a stand. [15] (It seems that no thought was given to the obvious; one of them holding the bike while the other filled the tank.) Mr Stone rejected the Crown Prosecutor's suggestion that it was "ridiculous" that they proceeded 250 metres in the pitch black, in the cold, to look for something to lean the bike against to refuel it". [16]

    15. Tcpt 34.20

    16. Tcpt 50.12

15. According to Mr Stone, the bike was refuelled from the fuel container and they shared a cigarette. It was cold so they lit a fire from dead grass. They "had a couple of Xannies each"; meaning tablets of the drug Xanax. They were on friendly terms, even to the extent of Mr Stone giving one of his two jackets to Mr Still because of the cold. [17]

    17. Tcpt 34.28

16. Mr Stone said that Mr Still poured petrol into a bucket that was from the boat that was nearby. He said the purpose was "just to tip onto the fire". (I am very dubious about this aspect of Mr Stone's account.) They were there for about 15 minutes when things "went quiet for a bit and there was no conversation between us and that's when I thought things sort of went a bit sour". Mr Stone thought that Mr Still tried to splash him with petrol so he immediately turned around and kicked the bucket of petrol towards him. He subsequently thought that there may have been some motivation for Mr Still doing what he did but he said in re-examination that his response to it was immediate and he did not think of anything. [18]

    18. Tcpt 35; 79.25

17. Mr Stone oscillated between saying the bucket of petrol was kicked "at Mr Still" and "at the fire". [19] However, the account in his 26 June 2019 interview, which he asserted was truthful, included him saying that he kicked the bucket of petrol "straight towards him". [20] The first mention in his evidence at the sentence hearing was, "I just kicked the bucket straight at him". [21] Nevertheless, he has claimed repeatedly that setting fire to Mr Still in this incident was accidental. [22]

    19. Tcpt 35.34; 53.34–54.2; 56.10; 64.38; 78.26; 79.25

    20. 26.6.19 interview Q35

    21. Tcpt 53.34

    22. 26.6.19 interview Q34. Tcpt 44.1; 89.29

18. Although I am troubled about the offender's account about getting Mr Still to bring petrol, his explanation for stopping at the quarry, and the reason for proceeding 250 metres away from the roadway, there remains doubt that he had determined to murder Mr Still at this point. I am satisfied that he deliberately caused petrol to be on Mr Still in circumstances in which it was obvious that he would catch fire. However, there is nothing to contradict the offender's account that this was a spur of the moment and responsive act as opposed to the product of a preconceived intention.

19. Mr Stone said that after kicking the bucket of petrol, he "just seen just a big flame" and he jumped on his bike and rode away. [23] In cross-examination, he said, "I didn't actually see him catch fire. I know he's caught fire. I knew the petrol had went up in flames." [24] Later in his evidence, he said the petrol was all over Mr Still who became "engulfed" in flames. [25]

    23. Tcpt 36.38

    24. Tcpt 56.25

    25. Tcpt 78.43 – 79.14

20. Initially, Mr Stone said that he heard Mr Still scream, although only for a second until he had jumped on the bike to leave. Later he claimed not to remember if he heard Mr Still scream. However, he told the police that he could not hear something "for the screaming so I started me bike". [26]

    26. Tcpt 44.16; 44.36; 78.47. 26.6.19 interview Q35

The offender left the quarry

21. Mr Stone said that he went to the home of a friend, which was only 500 metres away. Telephone records indicate that he arrived there at about 12.10am on 20 August 2018. [27] He tried ringing various people, including Troy McCosker. He explained that he chose to ring McCosker because he thought he had seen his car earlier and so thought that he was in the area. [28] The offender asked McCosker for a lift. [29] (Why a lift was needed when he had the bike was not explained.)

    27. SS/Facts [11]

    28. Tcpt 37.45

    29. SS/Facts [12]; Tcpt 57.33; 58.12; 77.8

22. It was at about 12.30am that he spoke with McCosker. Strangely, Mr McCosker told him that he was at the quarry. [30] (Why he was there, and what he saw and did there, is unknown.) Mr McCosker came and picked the offender up and they drove off in a direction away from the quarry. Mr Stone told him to "pull over". Not only did Mr McCosker pull over; for some reason, he drove into the Whitebridge Cemetery. [31] Mr Stone then quickly explained what had happened at the quarry and said, "I think Wade's in a bad way, I've got to go back there". [32] They then went back to the quarry.

    30. SS/Facts [12]; Tcpt 58.20

    31. Tcpt 62.18

    32. Tcpt 38.13

Second time at the quarry

23. Upon arrival at the quarry entrance, Mr McCosker and the offender became aware that Mr Still was lying on the ground by the side of the road (somehow having managed to traverse the 250 metres from the scene of the first incident). Mr Stone gave the following evidence: [33]

"Q. Did you say something to Mr McCosker then about what you should do?

A. Yeah, I said, 'What do you want to do?' I said, 'Do you want to ring the ambulance'? And that's when I made the stupid decision of also saying, 'Or should I just finish him off'."

33. Tcpt 38.27

24. In his police interview of 26 June 2019, after describing how they found Mr Still beside the road near the entrance to the quarry, he said: [34]

"A (27): … I said, 'What do you want to do'? And that's when I've made the bad decision, you know like, and I said, 'Listen, should I ring the ambulance or we've got to finish this prick off'."

34. 26.6.19 interview Q.27

25. Mr Stone said he could not explain what was going through his mind at the time. [35] However, in his 26 June 2019 interview, he said: [36]

"If I wasn't off me face, I would have been just calling an ambulance or something straight away but just being not in the right state of mind I, you know, I just thought get rid of everything and anything."

35. Tcpt 38.33

36. 26.6.19 interview at Q28

26. He rang Jasmine Kuczynski and asked her for petrol. It was now about 12.50am. She agreed and so the two men drove to her place and obtained a "nearly full jerry can of petrol". [37]

    37. SS/Facts [14]

Return to the quarry and the murder committed

27. Mr McCosker drove them straight back to the quarry. Mr Stone "jumped out of the car" and walked over to Mr Still. He tipped petrol on the ground and lit it. He said that he did not tip it directly on to Mr Still. He agreed with his counsel that his intention was "to finish him off". ^[38] He agreed in cross-examination that he realised he had the choice of getting help for Mr Still by ringing for an ambulance or "finishing him off", and he chose the latter. [39]

    38. SS/Facts [17]. Tcpt 39.22-44

    39. Tcpt 72.32

28. Mr Stone said the following to the police on 26 June 2019 about his actions in setting fire to Mr Still: [40]

"I jumped out of the car. This is where I can't actually remember exactly what's gone on there because I know I haven't tipped any petrol on Wade but he said something to me, he had something in his hand I remember, just something in his hand and I've tipped petrol on the ground and on the grass and I've seen a set of lights coming so I, I just lit the petrol up on the ground. You know, and I, you know, I remember now thinking, I would have been thinking at the time, I hope, you know, he's got petrol on him. I just, I, I don't know that that's what I thinking but I can just, you know, I'm trying to picked back at that time, what was I thinking.

Q29 Ah hmm.

A. And it would have been, I hope this guy is going to catch alight but …

Q30 O.K.

A. You know, who wants anyone to catch alight."

40. 26.6.19 interview Q 28-30

29. When this passage was read to him in cross-examination, Mr Stone agreed that his intention had been to kill Mr Still. [41]

    41. Tcpt 75.15

30. Mr Stone returned to the car, but dropped the spout for the fuel container on the side of the road.

31. Despite his denials, I am satisfied beyond reasonable doubt that Mr Stone poured petrol directly on to Mr Still before igniting it. Later, as he lay dying, Mr Still said to a fire officer, "[name of offender] poured petrol on me". In addition, the finding of Mr Still's DNA on the fuel container and its spout is otherwise inexplicable. But even if it was the case that Mr Stone poured petrol on the ground, the fact remains that his intention was that Mr Still would be burnt to death.

The aftermath

32. Messrs Stone and McCosker drove away from the scene. Mr Stone threw the fuel container from the car but it was later found by police.

33. A taxi came along Oakdale Road at about 1.00am. Its lights may have been the ones seen by the offender immediately before he decamped. The taxi driver, Mr Madden, noticed a small grass fire on the side of the road and so he pulled over and called the fire brigade. He then heard a voice screaming and saw Mr Still sitting on the ground holding his knees to his chest. Mr Madden called triple-0 again for the ambulance. Mr Still was screaming, "I'm dying, I'm dying". Mr Madden reassured him that help was on the way but Mr Still continued screaming. He must have been in the most excruciating agony.

34. Emergency services personnel arrived. Mr Still was treated as best as could be done. Arrangements were made for him to be airlifted by helicopter to Royal North Shore Hospital in Sydney but he was pronounced deceased while in transit.

35. An autopsy was carried out on 22 August 2018. An external examination showed a mixture of partial and full thickness burns to about 90% of the body. The pathologist noted that severe burns could result in death in a variety of ways; hence, the cause of death was given as just "Effects of Fire". He noted, "the distribution of the burns does not assist in determining whether there was more than one incident of ignition". He also wrote:

"The severity and distribution of burns in this case indicate a very poor chance of survival, even with prompt and extensive medical care."

36. Mr Stone was interviewed by police on 21 August 2018. He provided a false account of having taken Mr Still to the quarry and left him there, unharmed, to meet another person. He volunteered to be interviewed by police again on 26 June 2019 and gave what he says was a truthful account, one which he is prepared to give in evidence for the Crown in the prosecution of Troy McCosker.

Objective seriousness of the offending

37. The Crown contends that a life sentence might be considered in this case, subject to the factual and evaluative findings that are made. The Crown has not submitted that a life sentence is the only appropriate outcome and has said that it "does not speak against a determinative sentence".

38. It is necessary to assess the level of objective seriousness of the offence. Murder is an offence of the utmost seriousness, of course, but how serious is this as an example of the genre?

39. I have indicated my findings about some of the key issues and I can confirm that I have taken the submissions of counsel into account when making them. One of the difficulties is that an account of what actually occurred is significantly dependent upon what the offender has said and his account is difficult to accept in a number of respects. That may be because, although he accepts his blameworthiness in relation to many aspects, there are certain features that he is not prepared to admit. More likely to be a cause of difficulty is that his account is somewhat garbled because it derives from the mind of a person who for many years was a chronic user of illicit drugs. Some of the choices he made appear to be incomprehensible, but it may be that an explanation for his poor judgment derives from drug abuse for in excess of two decades. I will say more about that shortly.

40. There is also a possibility that Mr Stone's memory may be affected by the drugs he had consumed that night. I am not sure about that; it is one thing to say that a memory of an event has been lost because of drug intoxication but that is different to there being an acceptable explanation for inconsistent accounts of the event.

41. There is no doubt that the final act of setting fire to the deceased was deliberate and was done with an intention of causing death. Mr Stone candidly accepted that. Herein lies the conundrum of his account: while denying matters that seem undeniable, and maintaining things occurred which appear unlikely, he frankly admits to other matters which are gravely disadvantageous to him.

42. 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.

37. I accept that in certain respects the offender displayed poor judgment; but that in no way mitigates the objective gravity of a death caused by a deliberate choice, which was posed by the offender in such crude terms: "Should I ring the ambulance or we've got to finish this prick off". The deliberateness of the conscious choice made by the offender was exemplified by going away to get the petrol, returning and immediately pouring it over his helpless victim.

38. I do not accept the submission that the offender's actions may be judged against the fact that he was not brought up as a person who would seek out the help of the authorities. He could quite easily have had NSW Ambulance alerted to Mr Still's plight in a way that would not have disclosed his own identity.

39. I am unable to determine any clear motive for the offender doing what he did. His counsel described it as "senseless", and I think that is apt. Either that, or there is a lot more to the story that has not been disclosed – but I can only deal with the matter on the basis of what has been put before me.

40. 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. The seven factual points listed in the Crown's written submissions in support of its contention are applicable regardless of the finding made about the first incident. ^[42]

    42. Crown written submissions at [32]

41. Although I do not entirely agree with the Crown's analysis, my finding is that this case is a most heinous example of its type and is easily in the upper range of objective seriousness for the crime of murder. I am not of the view that a life sentence is appropriate, but there should be a determinate sentence of significant magnitude, subject to the other matters required to be considered.

Personal circumstances of Mr Stone

48. The documentary evidence as to the offender's personal circumstances comprises a report by a forensic psychologist, Mr Patrick Sheehan, and testimonials from family members including his father. Mr Sheehan interviewed the offender on 31 March 2020. There is also a letter written by the offender.

49. Mr Stone is aged 37. He is the third of six children. He described to Mr Sheehan a history of living in poverty in State housing in a disadvantaged area with high crime and drug abuse.

50. His parents separated when he was aged six. He stayed with his mother until the age of nine and then chose to live with his father. However, his father was in and out of prison; a heavy drinker and an abuser of a range of substances. The offender was neglected and exposed to antisocial influences. In these circumstances, it is unsurprising that he began to abuse substances himself.

51. The offender has had the bare minimum of education, leaving school at the end of Year 10. He has had limited employment, briefly holding unskilled roles and never for more than six months. He frankly told Mr Sheehan that he has "mostly relied on crime for income" and "has not held any legitimate employment since his twenties".

52. His criminal history is not insignificant. It is replete with relatively short periods of imprisonment. Much of it pertains to dangerous driving, driving whilst disqualified and the like. The non-driving offences include possessing and discharging a firearm in a public place in a manner likely to injure someone; drug supply; larceny; multiple assaults; having a knife in public; and contravening an apprehended domestic violence order.

53. His custodial record shows that four times he has been released on parole but had the parole revoked; between 2006 and 2014. His internal disciplinary record is consistent with an inmate with substance abuse issues.

54. The offender has had several long-term relationships but they have all been unstable, largely because of his own chaotic behaviour and drug use as well as the various episodes of arrest and imprisonment. He has a daughter aged 19 and a son aged 14. He acknowledged to Mr Sheehan that he had never been a stable or reliable influence in their lives but he speaks with both by telephone from custody.

55. The offender's substance abuse commenced with cannabis use at the age of 9, amphetamine at 11 with dependency at age 13. He continued drug use in gaol (including since his arrest for the present matter until about 6 months ago) most commonly heroin and non-prescribed buprenorphine. He broadened the range of drugs to include MDMA and cocaine but from his mid-twenties his drug of choice has been methylamphetamine. Mr Sheehan noted that the offender had never succeeded in remaining abstinent for more than a week. The report includes:

"He described a strong aversion to experiencing emotions and an overwhelming desire to feel nothing. This dysfunctional position has been the main driver for Mr Stone's drug use throughout life."

56. The offender told Mr Sheehan that he had been affected by methylamphetamine and benzodiazepines at the time of the murder of Mr Still. (I note that the sentencing legislation prohibits the taking into account of self-induced intoxication as a mitigating factor.)

57. There is no mental illness as such but the offender has been prescribed the antidepressant mirtazapine intermittently since the age of 18. He described to Mr Sheehan a very low distress tolerance and a history of forcefully head butting walls in response to emotional distress and conflict. He has never attempted to take his own life until after his arrest for the current matter when he attempted to hang himself in a cell in 2018. He continues to be prescribed mirtazapine but reported high levels of depression, feeling that his life has no meaning and is wasted, having no hope for the future and not wanting to exist. He is said to take no pleasure in activities and seeks to be numb and without thought. In Mr Sheehan's view, the offender's persistent suicidal ideation is concerning and his symptoms are consistent with Major Depressive Disorder. Stimulant use disorder – amphetamine type substance – (Severe, in early remission in a controlled environment) and Substance use disorder, are also relevant.

58. The testimonials from family members indicate that the offender has their support and they have some optimism that he will overcome his difficulties and lead a more prosocial life in the future.

59. Mr Stone was assaulted in Parklea Correctional Centre the weekend before last. He had just been transferred there, having been held at Wellington Correctional Centre for most of the time since his arrest in 2018. He was attacked with a sandwich maker and sustained injuries to his face, which required suturing, as well as a broken nose. He has since been placed in non-association confinement. The motive for the attack is not clear. It may possibly have something to do with Mr Stone's assistance to authorities which I will describe shortly.

60. Being in a non-association classification gives rise to an issue about whether Mr Stone’s custodial conditions are more onerous than usual. There is no evidence on the subject. It is not known for how long he may continue with this classification or whether he will be subject to any particular deprivation as a result. Accordingly, it is not a matter that justifies any mitigation of the sentence to be imposed.

Specific subjective matters relevant to sentence

61. There are a number of specific matters that bear upon the sentence to be imposed.

Conditional liberty

62. A subjective matter that operates in aggravation (although in the circumstances to a relatively minor degree) is the fact that the offender was on a good behaviour bond at the time of the offence. Ironically, one of the conditions of the bond was that the offender be supervised in relation to "counselling, educational development or drug and alcohol rehabilitation".

Dysfunctional upbringing and origin of drug addition

63. On the other side of the ledger are the circumstances of the offender's background. Drug use and criminal activity were normalised by his early exposure to them. He became addicted from a very early age with implicit encouragement from family members. Drug addiction was not really a matter of choice for him. It has been influential in a life of criminality that has been marked by poor choices. These matters bear upon the offender's moral culpability.

Remorse

64. I am satisfied that the offender is genuinely remorseful. There are a number of matters supporting that finding. One is that he voluntarily came forward to offer a confession in his interview of 26 June 2019. It is said that he thereby facilitated the administration of justice. That is true but I consider it more significant as a first sign of remorse. It was confirmed by his offer to give evidence for the prosecution. The content of the letter he wrote contributes to the finding. There is further confirmation in the evidence he gave at the sentence hearing. For example, he was asked by his counsel for his reaction to hearing the victim impact statements read and he replied, "It's upsetting. I deserve everything I get". He went on reflect upon his offending in a manner that appeared genuinely insightful and empathic.

Prospects of rehabilitation

65. Remorse is a mitigating factor in its own right but often tends to support a finding about an offender's prospect of rehabilitation. Given Mr Stone's lengthy history of substance abuse and his generally dysfunctional lifestyle there can be no confidence about it at this point. However, there are positive signs, including the fact that he claims not to have used illicit substances in the past six months and is now on a buprenorphine program. Mr Sheehan's report provides some further useful material about the lengthy path that remains to be trod by Mr Stone before it can be said with any confidence that his prospects are good.

Plea of guilty

66. Parliament has provided that a plea of guilty entered in the Local Court (as the offender's was) should ordinarily be rewarded by a reduction of sentence of 25%.

Assistance to authorities

67. The offender's assistance to authorities comprises his disclosures to police in his second interview on 26 June 2019 and his undertaking to give evidence for the prosecution in the trial of his co-accused, Troy McCosker. The Crown submitted that the offender's evidence is both important and significant to the Crown case against the co-accused. There is no evidence or information about the other matters a court is required to consider in deciding whether to impose a lesser penalty.

68. The statutory requirement as to the level of discount for the plea of guilty in this case being 25% means that there is less scope to further discount the sentence on account of the offender's assistance. Having regard to the starting point for the sentence that I have assessed, the overall reduction will be substantial in terms of actual years. Any greater reduction would result in the sentence being unreasonable and disproportionate to the nature and circumstances of the offence.

69. I propose to allow a discount of 10% for the offender's assistance to authorities. It will all be on account of the offender's undertaking to give evidence in the future. There is no "past" assistance given the co-accused had been identified, arrested and charged prior to the offender's police interview and undertaking to give evidence on 26 June 2019.

70. Before the current statutory regime of sentencing discounts for pleas of guilty was introduced a couple of years ago, I would have contracted the discount for the plea and allowed a more appropriate discount for the assistance to authorities. That is not possible now as the only reason that a court may reduce a discount for a plea relates to an offender's level of culpability and that is not what I am concerned with here.

71. I have given consideration to whether there are special circumstances that should result in an adjustment of the ratio between the non-parole and parole components of the sentence. I am unable to find that there are, but in any event the non-parole period could not be reduced any further than it is because the result would be less than the minimum justice requires in all the circumstances.

Conviction and sentence

72. The following orders are made:

Convicted.

Sentenced to imprisonment comprising a non-parole period of 17 years and 6 months with a balance of term of 5 years and 10 months.

The sentence will date from 21 August 2018. The offender will become eligible for parole when the non-parole period expires on 20 February 2036.

That is a total sentence of 23 years and 4 months. It would have been a sentence of 36 years but has been reduced by 35% because of the offender's early plea of guilty and his assistance to authorities.

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Endnotes

Decision last updated: 26 October 2020